Suicidally strong IP?

by John Quiggin on June 10, 2009

The strong showing in the EU elections by Sweden’s Pirate Party is the outcome of yet another Pyhrric victory for the strong IP movement, which succeeded, a couple of months ago in securing prison sentences for the Swedish operators of filesharing site Pirate Bay. This galvanised about 7 per cent of Swedish voters into supporting the Pirate Party, which reflects the typical feelings of Internet users: hostile to intrusive and aggressive IP, concerned about privacy for individuals and households, in favour of transparency for corporations and governments. These feelings are, of course, diametrically opposed to those of the elite groups that have historically driven policy on these issues. In the light of this public reaction, and the absence of any corresponding electoral support for the IP lobby, governments everywhere will think twice before endorsing criminal prosecution of IP violators.

Belatedly, the IP lobby is waking up. Robert Wexler, the Co-Chair of the US Congressional Intellectual Property Promotion and Piracy Prevention Caucus has issued a call to arms. Wexler makes the statement, usual in cases like this, that his lobby needs to a better job in communicating the message. But, also as usual in cases like this, the real problem is the message itself, exemplified by his reported view that ‘Government and private sector efforts to make IP theft taboo have fallen short’.

The problem here is that no one outside the IP lobby, not even those who strongly support copyright and patents, believes that these things are property that can be stolen. There is, I think, quite a bit of public sympathy for the view that the creative workers deserve a fair return for their efforts, and that social institutions should help to ensure that they receive it. There is essentially none for the inane suggestion that copying a video is similar to stealing a car.

I suspect that IP is doomed, given the steadily increasing ease of copying, the spread of free or open-source material and the reaction against the heavy-handed tactics used so far. But if the IP lobby wants to try to save something from the wreck, they would be well advised to put forward more moderate claims, supported by more credible arguments. Trying to massage the existing message won’t cut it.

{ 279 comments }

1

StevenAttewell 06.10.09 at 6:49 am

I think you’re right – it’s a moral economy issue. People instinctively feel that creators should get fair rewards for their work, but dislike middlemen and rentiers, and feel that at some point, culture should flow into the public domain (which should be thought of as the public’s domain).

2

nona mouse 06.10.09 at 7:26 am

I think this says suggests something about theft as depriving someone of something in a direct sense and not about the violation of someone’s right to something.

The reason people don’t take seriously the theft argument is maybe because they think they take something in a way that doesn’t deprive the maker–partly because in a lot of cases they would not have viewed/listened, etc. if the item hadn’t been freely available and their consumption/use doesn’t eliminate the possibility of anyone else’s use.

I wonder if it matters a lot that the item consumed is not a thing. Or is the main thing that it that it can be almost infinitely reproduced at a negligible cost?

It’s kind of interesting the arguments corporations use. They use rights-based ones– any enjoyment should result in some fee…They use consequentialist based ones…that producers will stop producing without incentive. Then they use the theft equivalence one that falls so flat. I wonder if any of the other options would be more effective. And if the tide has turned so decisively in the way it has because there’s such an incentive to do piracy or if it is either not wrong or such a seemingly small harm that it seems silly to resist it.

I was reading a John Cheever story the other day ‘The Housebreaker of Shady Hill.’ It made what I thought was a plausible point that a person can commit adultery and deception and so forth and feel at home in his community but even the most secret theft can feel like the greatest violation of that community. There’s a pretty strong prohibition against theft. I think that’s what they were trying to get at with their ‘piracy’ metaphor. They forgot that pirates are the kinds of thieves we have a romantic attachment to. And bank robbers.

3

per 06.10.09 at 7:48 am

The Pirate Party’s strong electoral showing is not attributable solely (or perhaps even mainly) to disagreements about IP. It is no less a reaction to the recent introduction in Sweden of extremely intrusive surveillance legislation, supported by all of the major establishment parties but vigorouly opposed by the Pirate Party. The immediate comment by Richard Falkvinge, the party leader, on the election results was nothing to do with IP, but rather:

“We don’t accept that the government is easvesdropping on us. People begin to understand that the government is not always good.”

4

JulesLt 06.10.09 at 8:25 am

The problem is that the public’s attitude is roughly similar to that on healthcare – i.e. they like the idea of Universal health care, but dislike the idea of paying for it through taxation.

Equally, while people talk about cutting out the middle man, it’s evident that the most successful artists are those who use lots of middlemen – that promotion and marketing are a huge factor in success.

Even if you run with the argument that creativity should be subsidised through merchandising, advertising, and personal appearances/live performance*, those are all forms that require (again) large middle man involvement.

Most authors I know actually want to get a publishing deal, and musicians a record deal, largely because they don’t really have any interest in the business side of publishing, promotion, etc. If we shift more in that direction, then inevitably success will flow towards those who are better at that side of things (although as it currently does anyway, this wouldn’t be a great change).

There is also the elephant in the room – a hugely profitable company who take billions out of the value from indexing and linking to content (while making sure their meta-data and algorithms are kept as trade secrets) while not investing in the production of that content at all, and funding anti-IP lobbyists and academics.

At least in the former system each middleman had a stake / risk / investment in making something a success. TV channels had to invest in producing something of sufficient quality to attract viewers. For Google it is irrelevant, so long as content exists and advertising can be served – but the slice that comes through to the producers is basically not large enough to sustain the practical production of content. Note how they have blocked people from trying to fund their content through embedding pre-roll advertising in YouTube videos.

(And of course it needs to be mentioned at this point that The Pirate Bay had links with the Swedish Far Right. Whole government is not always good, neither are those opposed to big government. Sometimes they are fascists).

* And the whole live performance thing has always struck me as an hilarious argument coming from people who are supposedly technology advocates, yet their idea of how music can be produced is pre-1950.

5

Cabalamat 06.10.09 at 8:26 am

Wexler needs to understand that he doesn’t have orbital mind control lasers, capable of brainwashing people into believing what he wants.

But if the IP lobby wants to try to save something from the wreck, they would be well advised to put forward more moderate claims, supported by more credible arguments.

They’ll have to break a lot of habits to do that. Frankly, I don’t think they’ve got it in them.

6

Stuart 06.10.09 at 9:03 am

The problem is that the IP lobby’s message is almost precisely calibrated to encourage the expansion of copyright infringement – trying to equate it to theft of a physical item immediately breaks down as I am sure if people could take a copy of next door’s car/plasma TV/etc. they would not feel quilty about doing so. Almost the entire perceived value of physical items is usually considered the costs of creating each physical instance (even though nowadays in many cases this is far from the reality, this is most people’s perception). So the analogy they are trying to push is counterproductive I think.

7

Henri Vieuxtemps 06.10.09 at 10:36 am

I like “suicidally strong”. But no, not necessarily: all this is relatively new, they are trying to find the limits, trying different moves, approaches. Once they get a clear idea of what it’s like – the chances of a backlash, the points where where they might be facing organized resistance – they will rollback and optimize their behavior. I don’t think there is a slightest reason to believe that the IP folks are suicidal; not as long as they can make some money off of it.

8

Steve LaBonne 06.10.09 at 10:41 am

In the light of this public reaction, and the absence of any corresponding electoral support for the IP lobby, governments everywhere will think twice before endorsing criminal prosecution of IP violators.

Well, maybe it’s like that in Australia, but in the US our government does whatever the corporate elite pays it to, public be damned, and our ovine electorate just swallows it.

9

Bunbury 06.10.09 at 10:43 am

JulesLt,

You mean like Damien Hirst?

Google does finance content production through Google adsense and similar schemes that have made it far simpler for independent content producers to make money out of their content than has been possible before. There is a lot of stuff out there that is extraordinarily useful that would not be available but for Google. It could claim to have vastly increased the efficiency of content production.

If there ever was a golden era of television production funded by advertising, it is not only Google that has put it to the sword but also HBO, MTV, Blockbuster, DVDs, Playstations and video on demand. It begins to look like Murder on the Orient Express — hard to identify a single culprit and the closer you look the harder it is to feel sorry for the victim.

I would be interested in more information about links between The Pirate Bay and the far right. I wouldn’t be completely surprised but these are topsy turvy times, the BNP are against the war in Iraq and privatisation and could share much of a platform with No2EU or Arthur Scargill’s mob.

On music performance your middlemen are made of straw. Are you also arguing that music production costs haven’t fallen dramatically? They have and so has video. That some people still choose to spend the same or more is an exploration of one kind of possibility but neither inevitable nor something in obvious need of preservation.

10

Ginger Yellow 06.10.09 at 11:02 am

“Even if you run with the argument that creativity should be subsidised through merchandising, advertising, and personal appearances/live performance*, those are all forms that require (again) large middle man involvement.”

I’m not sure what exactly a musician paying an advertising agency or a concert venue/promoter for their services has to do with 70 year copyrights.

“Most authors I know actually want to get a publishing deal, and musicians a record deal, largely because they don’t really have any interest in the business side of publishing, promotion, etc. “

This is indeed an issue, but it’s also something that can be done in a different way to the traditional music industry model. It’s the sort of thing in which musicians’ unions could play a very useful role, and of course there are all sorts of ways the internet could make the business side simpler and more effective for artists.

And the whole live performance thing has always struck me as an hilarious argument coming from people who are supposedly technology advocates, yet their idea of how music can be produced is pre-1950.

This is a bit of a non-sequitur. The vast majority of working musicians make the vast majority of their money through live performance. Over half of the Performing Rights Society’s total revenue comes from live music. Even among the tiny minority who make substantial sums of money through record sales, live performance and increasingly the use of music on TV shows, films and adverts provide plenty of revenue. Getting your song on a hit TV show is far bigger for an artist than a conventional publishing deal, though of course the latter helps with the former.

11

jack lecou 06.10.09 at 1:01 pm

The problem is that the public’s attitude is roughly similar to that on healthcare – i.e. they like the idea of Universal health care, but dislike the idea of paying for it through taxation.

I don’t want to sidetrack anything, but it’s probably worth pointing out that this is wrong too: If you ask people separate questions, it is true that they are generally for ‘health care’, and against higher taxes. But my understanding is that usually if you link the two, slightly higher taxes in exchange for better health care, people react fairly positively.

12

novakant 06.10.09 at 2:44 pm

The problem here is that no one outside the IP lobby, not even those who strongly support copyright and patents, believes that these things are property that can be stolen.

Why are they not property, why can they not be “stolen”? Do we define “stealing” solely as physically removing something from somewhere? Your life savings don’t exist in any concrete, physical form either (unless you keep them under your pillow), yet you surely would object to some hacker cleaning out your bank account. You are not stealing anything in a narrow, literal sense by sneaking into a theatre, cinema or music venue for free, yet you would be depriving the owners, artists and producers of their profits. And people buying a DVD are certainly not paying for the physical item, which is worth 10 pennies maybe, but for the experience of watching a film at home.

There is, I think, quite a bit of public sympathy for the view that the creative workers deserve a fair return for their efforts, and that social institutions should help to ensure that they receive it.

That’s certainly very big of the public.

13

StevenAttewell 06.10.09 at 2:49 pm

JulesLt:

Really? Everything I’ve read on the Pirate Bay folks is that they’re anarchists, not far-right. They don’t believe in IP – how is that compatible with being far-right?

14

Henri Vieuxtemps 06.10.09 at 2:55 pm

you surely would object to some hacker cleaning out your bank account

Hacker transferring digitized money to his account reduces the amount of digitized money in my account. That’s stealing. If he could merely copy from my account to his, I might not care.

15

StevenAttewell 06.10.09 at 2:59 pm

Novakant:
Because theft usually involves depriving someone of a thing. In the case of downloading, you’re not actually taking a copy of the movie or the song from the shelves – you’re depriving them of potential revenue, as opposed to actual physical property.

This gets further complicated by the fact that these corporations are not uniformly enforcing copyright – they don’t prosecute people for copying tv programs with their VCRs/TIVOs and watching a show or movie a hundred times without ever buying the DVD, they actively encourage people at concerns to make bootlegs as a form of free advertising, they don’t sue people for not paying for a song if someone plays a boombox or a radio really loudly and people hear the music without paying for it, etc.

16

novakant 06.10.09 at 3:30 pm

They don’t believe in IP – how is that compatible with being far-right?

Dunno, but The Pirate Bay received major seed money from xenophobic, far-right activist Carl Lundstroem:

In April 2007, a rumor was confirmed on the Swedish talk show Bert that The Pirate Bay had received financial support from right-wing entrepreneur Carl Lundström. This caused some furor since Lundström, an heir to the Wasabröd fortune, is known for financing several far-right political parties and movements like Sverigedemokraterna and Bevara Sverige Svenskt (Keep Sweden Swedish). (…) Piratbyrån spokesman Tobias Andersson acknowledged that “without Lundström’s support, Pirate Bay would not have been able to start”.

_____

Because theft usually involves depriving someone of a thing.

Well, I tried to make the point that it’s not crucial to the definition of theft, that the “thing” one has been deprived of is of a physical nature.

17

jack lecou 06.10.09 at 3:32 pm

…you’re depriving them of potential revenue, as opposed to actual physical property.

And a highly dubious “potential” revenue at that.

Industry estimates are transparently false, probably off by a couple orders of magnitude. It’s pretty obvious that you don’t get to multiply the number of bootlegged movies sold in Laos over the last decade by full retail price to calculate the industry’s “losses”. Likewise, very few of the people who download 3 seasons of House off of Piratebay would have bought the 12 DVD collectors box set if the first option weren’t available.

I think more and more people understand this, and that can’t help the industry’s credibility much either.

18

lemuel pitkin 06.10.09 at 3:46 pm

This post is right on.

However, it’s incumbent on those of us who believe that “IP” is incoherent in theory and destructive & unworkable in practice, to make a positive as well as a negative case. That is, we need to affirmatively show that there are otehr ways of providing the income and other resources people need to do creative work.

Note that this does not mean “compensating” artists. For many kinds of creative work, all that is needed is to guarantee everyone sufficient income and leisure — something any decent society will do anyway. To the extent artists need extrinsic motivations, status and reputation work better anyway.

To start with, we need to call much more attention to the fact that a very large proportion of creative work takes place in academic settings, which are designed specifically to support the production of work that is then freely disseminated.

19

Ginger Yellow 06.10.09 at 3:53 pm

“Well, I tried to make the point that it’s not crucial to the definition of theft, that the “thing” one has been deprived of is of a physical nature.”

Yeah, but the point is that it’s not 100% clear cut that you’re being deprived of any real thing, physical or not. Now, personally, I don’t go that far, but the point is that what IP owners are being deprived of is potential revenues. An IP “thief” wouldn’t necessarily buy the product that they’ve “stolen”. This, indeed, is the position of IP owners Stardock, who publish games without DRM despite evidence that they’re widely pirated (causing actual costs to themselves in the case of their most recent game). They argue that in the vast majority of cases people who pirate wouldn’t buy the game anyway, and the way to combat piracy is to offer a better service than the pirates – for example with patches and content long after release, only available to people who use their Impulse service.

The natural analogy isn’t to theft. If I start a rival company to yours, I’m depriving you of potential revenue, but nobody would claim I’m a thief. The problem, of course, is the infringement of IP rights – this is a real concern, but that doesn’t make it literal theft. And it’s important to remember that IP rights are a construct, explicitly (in the US) constructed to enhance “progress”. Modern copyright law has moved well beyond that goal and very arguably hinders progress.

20

jack lecou 06.10.09 at 3:58 pm

Well, I tried to make the point that it’s not crucial to the definition of theft, that the “thing” one has been deprived of is of a physical nature.

No one doubted that. But the problem is that the thing the industry claims to be deprived of isn’t non-physical, it’s mostly fictional.

On top of that, it cuts both ways.

Consider someone who downloads a few movies, tv episodes, and some music every month. They also spend about $100 going out to movies and concerts.

Now, what happens if we start perfectly enforcing copyright? Well, they have to cut back. Maybe they cut out the movies and the concerts, and spend the $100 a Tivo, premium cable, and a couple downloads from iTunes. Or keep the going out concerts and movies, but cut all the staying-in stuff. Either way, the entertainment industry collectively gets about the same amount–maybe slightly more, and with a different distribution– but consumers get a whole lot less.

So, in order to recoup (at best) a small fraction of their fictional losses, the IP lobby wants to beggar everyone of a large fraction of their cultural consumption. It’s a hard sell.

What people want is some policy that’s going to fairly compensate creators, but without also pointlessly depriving the public of much of their output.

21

lemuel pitkin 06.10.09 at 4:09 pm

what IP owners are being deprived of is potential revenues.

Which they are also deprived of if someone simply doesn’t buy their product. or, more to the point, if a third party starts selling a similar product.

this last makes the point clear: IP is a government-granted monopoly. From the monopoly holder’s point of view, they want it to be as broad as possible. The history of IP makes this clear. The property metaphor is then tweaked after the fact to cover whatever they’ve been able to win politically.

Now historically government granted monopolies were used to provide lots of goods that the state was unable to, and that private actors wouldn’t otherwise. The way you get a bridge built is to grant so-and-so a monopoly on crossing a certain stretch of river. if anyone else decides to operate ferry service, they are “stealing” the revenue the monopolist is entitled to. Arresting people for running a ferry is wasteful and unjust, but maybe there was the no other way to finance the construction of the bridge.

But we don’t use river crossing monopolies to finance bridge construction any more, for good reason. Nor do we have most of the other monopolies governments used to grant. Where genuine competitive markets aren’t possible — as they aren’t, anymore, for most kinds of creative work — some kind of direct public provision is almost always more efficient.

22

Ginger Yellow 06.10.09 at 4:20 pm

“Which they are also deprived of if someone simply doesn’t buy their product. or, more to the point, if a third party starts selling a similar product.”

That is indeed the point I was making.

“But we don’t use river crossing monopolies to finance bridge construction any more, for good reason”

Actually, we do, with similarly disastrous results. See the Skye bridge fiasco.

23

novakant 06.10.09 at 4:20 pm

I don’t think that the industry numbers on lost earnings are correct either, but the truth is that nobody knows what the number is, because it depends on factors that are impossible to quantify exactly. But I think if somebody puts a lot of time and effort into downloading films or music, chances are he likes these products enough to have bought instead of downloaded the odd DVD, computer game or CD, had he not had the ability to acquire them for free. Nobody I know of would argue that there isn’t a certain percentage of lost revenue and if it’s only 20% of what the industry claims that would still be a huge amount of money.

Anyway, this is all rather immaterial, since it should be up to the artists and the industry to decide how they want to distribute their products, not the consumer.

24

Henri Vieuxtemps 06.10.09 at 4:49 pm

There are aspects of properties that can’t be sold or charged for, not easily anyway. Smell of gourmet food, view of a Gaudi building. Maybe internet sharing is one of those things. You certainly can be charged for the food itself or for getting inside La Sagrada Familia. So, similarly you pay for getting into a movie theater or for a concert.

25

Ginger Yellow 06.10.09 at 5:11 pm

Similarly, in many jurisdictions rights to future receivables can’t be transferred.

26

jack lecou 06.10.09 at 5:15 pm

Nobody I know of would argue that there isn’t a certain percentage of lost revenue and if it’s only 20% of what the industry claims that would still be a huge amount of money.

20% seems very high – keep in mind there’s a substitution effect with non-downloadable entertainment like movies and concerts. It all comes out of the same entertainment budget.

Regardless, assuming it is 20%, perfect copyright enforcement would then mean that producers get 20% more in order for consumers get 80% less.

Possibly the additional revenue would spur some additional creative active, but it would have to be a lot to make up for the reduced consumption ability. Far better would be public policy that captures some or most of the genuinely lost revenue and channels it to creators, without artificially depriving the public of the ability to enjoy their work.

Anyway, this is all rather immaterial, since it should be up to the artists and the industry to decide how they want to distribute their products, not the consumer.

That’s not given. That’s the very heart of the debate.

27

Salient 06.10.09 at 5:23 pm

Anyway, this is all rather immaterial, since it should be up to the artists and the industry to decide how they want to distribute their products, not the consumer.

I would argue the government ought to be responsible for ensuring a comfortable if not terribly fulfilling quality of life for its citizenry, and should conversely assert that innovations will receive time-limited protection for a short duration, after which the innovation enters the public domain for the benefit of all.

That is, I’d be more or less okay with strict(er) IP if copyright/patent protection didn’t extend so absurdly far from the date of innovation. If you can’t make money from your innovation after a decade of protection, preventing others from attempting to do the same is not a social good and shouldn’t be supported by law. (And if you did make a decade’s worth of money, riding on those laurels indefinitely is not a social good and shouldn’t be supported by law.)

28

Steve LaBonne 06.10.09 at 5:39 pm

I would argue the government ought to be responsible for ensuring a comfortable if not terribly fulfilling quality of life for its citizenry, and should conversely assert that innovations will receive time-limited protection for a short duration, after which the innovation enters the public domain for the benefit of all.

Which of course is what the authors of the US Constitution THOUGHT they were providing for in Article 1 Section 8. Sadly they could not foresee the future of pay-to-play government.

29

Kenny Easwaran 06.10.09 at 6:27 pm

Re lemuel pitkin at #18:

a very large proportion of creative work takes place in academic settings, which are designed specifically to support the production of work that is then freely disseminated.

Unfortunately, the IP lobby gets in the way of that too. Although academics are often used to working at universities that have subscriptions to the online versions of most of the major journals in their fields, this stuff is far from freely disseminated. Maybe some fields are different, where the government has enforced open access, but in other fields, the work is only freely disseminated due to libraries paying huge prices, or due to academics breaking the law and putting copies of their publications up on their web pages for free.

30

novakant 06.10.09 at 6:36 pm

Regardless, assuming it is 20%, perfect copyright enforcement would then mean that producers get 20% more in order for consumers get 80% less.

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it. There was a time not very long ago before file sharing had been invented and everybody seemed to be more or less fine with things as they were then – people bought albums, went to the movies, rented videos (and occasionally copied something for a friend, which is not comparable at all to sharing a torrent which can be downloaded by millions in a couple of minutes).

That’s not given. That’s the very heart of the debate.

I agree that this is at the heart of the debate and I argue so strongly for IP, because I believe that the artist owes society nothing and can do whatever he wants with his works.

31

Henri Vieuxtemps 06.10.09 at 6:41 pm

There was also time when cities were surrounded by walls and the peasants had to pay toll to get in. But times change.

32

jack lecou 06.10.09 at 6:52 pm

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it.

This strikes me as a counterproductive position to take if your goal is actually to craft optimal public policy.

I agree that this is at the heart of the debate and I argue so strongly for IP, because I believe that the artist owes society nothing and can do whatever he wants with his works.

If the artist owes society nothing, then society certainly owes the artist nothing – do you want to see them try to do whatever they want with their works in a genuinely free market without copyright protection?

33

Bunbury 06.10.09 at 7:01 pm

When people bought albums the played them for their friends, lent them to each other, put them on tapes and resold them. All of these things are now controversial and the argument has to cut both ways. IP owners frequently try to assert rights that go far beyond what have been allowed previously by hard won property laws. At the same time there is a fundamental change in the characteristics of the medium of delivery which makes possession of them effectively non-rival to the extent that the original rationale for copyright, to protect the investment in the production of copies of a work rather than the work itself, really does not apply any more.

Aside from the general implausibility of such an absolute statement as

I believe that the artist owes society nothing and can do whatever he wants with his works.

the artist does not have the right to unlimited and destructive enforcement of copyright protection and is only owed by society what protection it can reasonably provide. In short the artist can do what he likes but if he wants other people to do something about it he will have to accept what society is willing to do.

34

belle le triste 06.10.09 at 7:03 pm

“the artist can do whatever he wants with his works”

What if I wish to charge novakant $100 for reading this post? The artist — fairly obviously — can’t do whatever he wants with his works: there’ve always been limits. If one wants one’s brilliant idea to circulate (which means, to matter) there’s a price to be paid for its circulation — in the old days the printer or gallery owner used to take their handsome cut (just ask a 50s RB artist who got the royalties): in p2p-world the circulators are largely you and me, and the price we’re currently asking is very high (all your possible earnings) but then so is the potential circulation of your work; it’s circulating because people want it.

35

Steve LaBonne 06.10.09 at 7:07 pm

I love it. Copyright holders bribe legislatures into passing copyright laws that go so far beyond the intended purpose of copyright that they amount to looting of the public domain. Then they turn around and whine about their “rights”, as if these were rights of any other than the might-makes-right variety. And they even convince otherwise sensible people to shill for their legalized extortion racket.

36

jack lecou 06.10.09 at 7:10 pm

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it.

I should add that technically the consumer IS willing to pay something for it. They might be willing to pay, say, $2 for the Buffy DVD set. In a perfect world, maybe we could even have some system of perfect price discrimination, and they could actually get it for $2.

But in real life, they get nothing for being willing to pay $2, even though the marginal cost is nearly $0. That’s a social net loss. It’s better overall to give them the entertainment that’s worth $2 to them for free, if you can do it while still rewarding creators adequately.

37

lemuel pitkin 06.10.09 at 7:17 pm

33, 34, 35-

Right, it’s the IP ratchet. Those rights the law currently vests in copyright holders have all the moral and legal qualities or private property — to modify or infringe on them in any way amounts to theft, “takings”, etc. While those rights the copyright law currently vests in the general public have no legal or moral value at all — they can be reduced at any time, with no need to even consider the interests of those losing them.

Novakant deserves credit for putting this position even more starkly than a Disney lobbyist would dare to — tho even he feels compelled to euphemize “copyright owner” as “artist”.

38

belle le triste 06.10.09 at 7:20 pm

Effectively they price or police themselves out of the discussion. I work in magazine production — though luckily NOT on the picture desk. When we need to run a sanctioned picture of a building by a major architect, or of a painting by a canonic painter, we can (a) steal it off the net or copy it out of a book for free, or (b) negotiate with an agency or an estate — the latter, currently, often means a nightmare of demands and conditions (including copy-approval, insistence on wording and placing of credit, colour repro approval), even before you get to the very high fee (how much goes to the agency? the artist is DEAD so none is going to him… )

The issue here is a massive corporate-bureaucratic chill on the kinds of things that can be said about — say — Mondrian, should you wish to illustrate what you’ve said with an actual picture by Mondrian.

The place I work has no great heft as a magazine; cannot negotiate from strength; if I were picture editor we’d run a lot more blank spaces saying “we wanted a nice pic of suchandsuch a building here, but the agency [insert name] were MASSIVE DICKS about it because they wish to control what gets said about their clients: so here’s a nice horsey instead…” — which is obviously why I am not allowed to be picture editor.

Art isn’t the thing itself by itself; it’s also all the things said it. Shut the second bit down and the first bit will dry up and blow away.

39

belle le triste 06.10.09 at 7:38 pm

Dividing the world into creators and consumers is a powerful rhetorical move: it overlooks how much of the value — the social meaning — is brought to the picnic-that-is-art by the users*… it’s not all of it (it’s a conversation and the artist, as threadstarter, has a role in getting stuff going), but it’s a signficant element, and IP as currently understood really doesn’t know to open itself to this.

*Critics, early adopters, fellow artists, rivals… all the way down to you and me here, creating (and destroying) value by yakking on the internet

40

Steve LaBonne 06.10.09 at 7:40 pm

That rhetorical move also obfuscates the fact that most copyrights are NOT held by creators. I believe the technical term for this trope is “lie”.

41

novakant 06.10.09 at 7:43 pm

This strikes me as a counterproductive position to take if your goal is actually to craft optimal public policy.

Maybe I don’t want to craft public policy according to criteria that you deem optimal. Maybe I think artists not getting ripped off is a higher goal than the rest of society enjoying a free ride.

If the artist owes society nothing, then society certainly owes the artist nothing – do you want to see them try to do whatever they want with their works in a genuinely free market without copyright protection?

Society owes the artist nothing more than anybody else. Everybody else’s property is protected by laws and law enforcement and so should the artist’s property be.

42

lemuel pitkin 06.10.09 at 7:46 pm

Everybody else’s property is protected by laws and law enforcement and so should the artist’s property be.

And how do we decide what is, and is not, the artist’s property?

For instance, in your opinion, how long should copyrights run?

43

Steve LaBonne 06.10.09 at 7:48 pm

Maybe I think artists not getting ripped off

Assumes facts not in evidence.

the artist’s property

Assumes facts (that eternal “Mickey Mouse Act” copyright is a legitimate form of property) not in evidence.

You’ll have to do a LOT better than that.

44

Tom West 06.10.09 at 7:51 pm

Alas technology has destroyed what had been a fairly reasonable compromise (some copying, but generally degraded enough to provide incentive to purchase originals, etc.)

However, change has come, and really the only two positions that can really be sustained in the long run are no more IP or, just possibly, draconian IP restrictions. (I’m not talking about extension to copyright, just enforcement).

I’d say that those producing digitizable media for the young are dead men (or women) walking. Among the young, the concept of IP ownership is dead. In general, if something can be had for free, then it’s “just stupid” to pay for it – you spend your money on stuff that you can’t get for free elsewhere (tangible goods or stuff that hasn’t yet been pirated/cracked). Interestingly enough, the concept of the morality of piracy doesn’t even come up.

Personally, I like the idea of piracy of IP as counterfeiting. It doesn’t impoverish or deprive the IP owner directly, but it does decrease the value of the IP.

#18 (lemuel). Most successful writers (5+ books) I know work very hard at trying to produce their work and are constantly fighting against a dozen demons (housework, children, time with spouse, World of Warcraft, etc.) that would have them write little, if nothing. The wolf at the door is usually the chief spur to continue writing at an acceptable rate. A decent guaranteed lifestyle would probably finish the careers of most of them (now you’re neglecting the children for nothing!), and if only the basics were guaranteed, the loss of anything resembling IP laws would force those capable of anything better into “real jobs” instead of writing to support their family.

You can no more produce acceptable amounts and quality of intellectual property without some IP protection than you can man the coal mines with those working them for ‘the joy of it’.

45

John Quiggin 06.10.09 at 7:51 pm

Given your absolutist position, Novakant, I offer the following. The property rights routinely asserted over creative works include claims over derivative works. But all new art is derivative from older work, and ultimately from work that lies in the public domain, over which the public is entitled to assert the rights you claim.

So, any rights granted to creators of derivative works are at our absolute pleasure. As you put “society owes artists nothing”, and particularly not the right to modify, then monopolise, our common culture.

The same applies, in spades, to patents. I’m perfectly happy to grant an unlimited patent to any inventor whose inventive process doesn’t use language, mathematics, or any material, tool or piece of scientific knowledge developed in the past. All others should get the terms society chooses to offer.

46

belle le triste 06.10.09 at 7:52 pm

Well, creation and circulation are usually different activities: copyright is about circulation, really (it’s the alienable right to copy the original: and the copying technology and distribution technology are very likely owned by someone else, so they end up with this right). Which can be a trade-off that’s helpful to both, though the bigger party holds the whip hand, and exploits it ruthlessly. A lot of IP noise is today is really just frantic rent-seeking as an earlier technological mode of control collapses, and a new one emerges. The “bigger party” today is the p2p entity: it holds the whip-hand as regards the new copying-and-distribution technology. It remains to be seen whether it arrives at a better deal with the creator, from the creator’s perspective.

47

Tom West 06.10.09 at 7:53 pm

That rhetorical move also obfuscates the fact that most copyrights are NOT held by creators.

Depends on the medium. Authors almost always hold copyright unless they’re working with the someone else’s IP.

48

jack lecou 06.10.09 at 7:56 pm

Society owes the artist nothing more than anybody else. Everybody else’s property is protected by laws and law enforcement and so should the artist’s property be.

Seconding Lemuel’s questions.

You’re really not actually addressing the point that this form of property is created. And created for a specific purpose – to benefit society. This is fundamentally a different kind of property than say, a goat.

There’s no intrinsic reason we should be recognizing and protecting an abstract claim on copies of copies of an original work anymore than there’s some kind of intrinsic mandate that the government send a team of FBI investigators to come and contain and protect my flatulent emissions – which are, after all, my creations.

The only reason to do either is if there is some positive benefit to society.

49

Steve LaBonne 06.10.09 at 7:57 pm

Authors almost always hold copyright unless they’re working with the someone else’s IP.

BOOK authors mostly. Periodical authors mostly not. Musicians in many cases not. But more importantly, that’s before even getting into the issue of DECEASED creators whose works are still in copyright (mostly held by corporations).

50

belle le triste 06.10.09 at 7:59 pm

The writing that’s entered the canon is out of copyright: the agreed-on classics are available in cheap editions that anyone can run out, for next to nothing. You can defend your property, or you can belong to the ages: is there an inbetween position?

51

lemuel pitkin 06.10.09 at 8:08 pm

Most successful writers (5+ books) I know work very hard at trying to produce their work and are constantly fighting against a dozen demons (housework, children, time with spouse, World of Warcraft, etc.) that would have them write little, if nothing. The wolf at the door is usually the chief spur to continue writing at an acceptable rate.

Brilliant. So let’s impose a special tax on book royalties to ensure no author is ever financially secure.

Right?

52

Tom West 06.10.09 at 8:12 pm

#45. Mr Quiggin, is there anything you’ve argued in the first two paragraphs that wouldn’t equally apply to physical objects? I’d certainly have not physically created anything if I hadn’t benefited from the past 10,000 years of society.

Does that justify society being allowed to confiscate it at some point when we feel that higher social good is found by taking it away from me and giving it to someone else?

I’d argue “Yes” to the last question. It’s called taxes.

But then why should IP owners be subject to losing their property at a higher rate than physical property owners? Simply because there’s more social good to be had? Seems a bit unfair to the IP producers, especially considering that most never make it above poverty level.

53

Ginger Yellow 06.10.09 at 8:17 pm

Maybe I don’t want to craft public policy according to criteria that you deem optimal. Maybe I think artists not getting ripped off is a higher goal than the rest of society enjoying a free ride.

You may think that – it’s an entirely defensible position and of course that’s your prerogative. But the express purpose of copyright law is the public good, not protecting artists from being “ripped off” for its own sake. And different people have different views of copyright, which as has been expressed above is something bestowed by society and subject to such limits as society deems fit.

54

Ginger Yellow 06.10.09 at 8:20 pm

But then why should IP owners be subject to losing their property at a higher rate than physical property owners?

If you, as an IP owner, want to hoard your IP, you may do so indefinitely (well, at least until death) without society ever confiscating the tiniest bit of it.

55

Tom West 06.10.09 at 8:21 pm

So let’s impose a special tax on book royalties to ensure no author is ever financially secure.

I don’t personally know any author who considers themselves financially secure :-). Seriously, I think you’d need to be above the 99.8% percentile of writers to be in that category.

More to the point, my personal experience is that if a writer’s remuneration was in no way connected to their effort, many if not most, would write a lot less.

56

lemuel pitkin 06.10.09 at 8:23 pm

Tom West-

You might want to explore the implications of your answer to this question

Does that justify society being allowed to confiscate it at some point when we feel that higher social good is found by taking it away from me and giving it to someone else? I’d argue “Yes” to the last question.

for your other question:

why should IP owners be subject to losing their property at a higher rate than physical property owners?

You also might want to reconsider whether the fact that “most [IP producers] never make it above poverty level” is really an argument in favor of the existing system of IP protections.

(I thought Novakant was setting the local record for pro-IP chutzpah. But Tom West’s “the current IP system screws artists royally, therefore we must defend the current IP system for the sake of artists” looks like a new winner.)

57

Tom West 06.10.09 at 8:24 pm

#54, Good point. However, if I choose to lease my physical property (under whatever contract the buyer and the seller agreed to), I don’t get my property confiscated for social good.

58

lemuel pitkin 06.10.09 at 8:30 pm

Hey Tom, how long do you think copyrights should run?

59

Ginger Yellow 06.10.09 at 8:30 pm

57: cf Squatter’s rights.

More to the point, though, the whole argument is that intellectual property is not like other property.

60

Ginger Yellow 06.10.09 at 8:31 pm

Not sure what happened to my punctuation in that post. Never mind.

61

jack lecou 06.10.09 at 8:34 pm

But then why should IP owners be subject to losing their property at a higher rate than physical property owners? Simply because there’s more social good to be had? Seems a bit unfair to the IP producers, especially considering that most never make it above poverty level.

There is no such thing as “IP”. Using the word ‘property’ at all just clouds the argument. Copyrights and patents are public policy vehicles designed to entice people with valuable ideas to share them with society. Period.

If you come up with a way to reward creators sufficiently while sharing their works with an even broader segment of society, you’re “taking” from them in about the same way that calculator salesmen take things from abacus salesmen. (Less, actually, since notice that they still get paid.)

62

belle le triste 06.10.09 at 8:35 pm

It’s not your punctuation, GY, it belongs to the collective.

63

novakant 06.10.09 at 8:38 pm

But all new art is derivative from older work, and ultimately from work that lies in the public domain, over which the public is entitled to assert the rights you claim.

Sorry John, but this claim is much too broad to be taken seriously. Being influenced by predecessors or the culture as a whole doesn’t make an artist or his creations derivative. The term “derivative work” has a rather limited and specific meaning.

64

lemuel pitkin 06.10.09 at 8:40 pm

Novakant, how long do you think patents and copyrights should run?

65

jack lecou 06.10.09 at 8:40 pm

More to the point, my personal experience is that if a writer’s remuneration was in no way connected to their effort, many if not most, would write a lot less.

It’s unclear where you’re getting the idea that copyright is the only system capable of rewarding people based on the quantity and the quality of their output. It’s unlikely that any of the alternative systems would consist of paying a fixed government salary to everyone who claimed to be an author…

66

novakant 06.10.09 at 8:47 pm

Novakant, how long do you think patents and copyrights should run?

Oh, I don’t know, life + 50 years or something like that.

this form of property is created. And created for a specific purpose – to benefit society.

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society – maybe this happens more often in totalitarian countries, though.

67

lemuel pitkin 06.10.09 at 8:48 pm

Arguing that people won’t write without compensation in the comments to Crooked Timber is sort of like using OpenOffice to write an essay on why office software can’t be developed open source.

68

Righteous Bubba 06.10.09 at 8:50 pm

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society

Perhaps you haven’t met one.

69

lemuel pitkin 06.10.09 at 8:54 pm

Novakant, how long do you think patents and copyrights should run?

Oh, I don’t know, life + 50 years or something like that.

Patents, too? So when I buy a store-brand bottle of acetaminophen from my local drugstore, I am stealing it, just as much as if I had shoplifted it?

(After all, if patents lasted the lfie of the discoverer plus 50 years, Johnson & Johnson would still own the patent.)

Conversely, why stop at 50 years? If you build a house and leave it to your kids, they don’t lose title 50 years after your death. And I thought IP was just like physical property?

70

jack lecou 06.10.09 at 8:56 pm

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society – maybe this happens more often in totalitarian countries, though.

The legal fiction of copyright is what I was referring to as created for this purpose, obviously.

(Also, I daresay a lot of artists DO make their art principally because they think it will benefit society– i.e., so other people will enjoy it.)

71

belle le triste 06.10.09 at 8:56 pm

It is sensible to file artists’ declarations on their reasons for being creators under fiction.

72

Henri Vieuxtemps 06.10.09 at 9:05 pm

Copyrights and patents are public policy vehicles designed to entice people with valuable ideas to share them with society. Period.

So they say, but perhaps it was designed primarily because anything that can be commodified must be commodified. In which case, all the morality stuff is irrelevant, and the only question is: given modern technology, can it stay commodified or not? It appears that it can’t, though.

73

novakant 06.10.09 at 9:37 pm

It is sensible to file artists’ declarations on their reasons for being creators under fiction.

Agree fully. But then, what is one supposed to say without sounding corny?

74

belle le triste 06.10.09 at 9:44 pm

Talk about where value comes from.

75

John Quiggin 06.10.09 at 11:10 pm

“The term “derivative work” has a rather limited and specific meaning.”

It does in copyright law, but I understood you to be arguing on an absolute natural rights basis that for any given artist, innovator, writer etc, the terms on which they make their work available are whatever terms they choose to impose, and that society is obliged to enforce those terms. So, if some early blogger had asserted that anyone who read their blog thereby assigned ownership of any derivative blog to the original blogger, they would be within their rights.

And with patents, there isn’t even this limit. Once you’ve patented something you get rights against people who come up with the same idea independently.

76

Down and Out of Sài Gòn 06.10.09 at 11:28 pm

Oh, I don’t know, life + 50 years or something like that.

Why shouldn’t copyright expire during the artist’s lifetime, Novakant? Make it a fixed term irrespective of whether the artists lives or dies. 28 years maximum was good enough for George Washington.

77

Righteous Bubba 06.10.09 at 11:33 pm

I may be wrong but I don’t think Novakant’s likely to care about George Washington. I’m not sure myself what the ideal length is – though why it should exist past the life of the author is beyond me – but it might be interesting to have some permanence to authorship: copyright in music has traditionally been a way for record labels to rip off musicians. What if they weren’t assignable?

78

novakant 06.10.09 at 11:38 pm

I understood you to be arguing on an absolute natural rights basis that for any given artist, innovator, writer etc, the terms on which they make their work available are whatever terms they choose to impose, and that society is obliged to enforce those terms.

I think we misunderstood each other here – I didn’t mean to say that artists could dictate the law, the current consensus of copyright lasting for a lifetime + 50 years or something along those lines seems very reasonable to me. In a wider sense, I would argue for the absolute autonomy of the artist, which would include doing whatever they want in their art, choosing not to release works at all or destroying them, and against them owing any debt to society, because I think that’s pious nonsense and it is not how most art is produced anyway. But when they have chosen to circulate their work, they are of course subject to the law of the land. This position seems to be very controversial here.

I have no considered opinion on patents.

79

lemuel pitkin 06.10.09 at 11:41 pm

But when they have chosen to circulate their work, they are of course subject to the law of the land.

So if a law were passed to limit copyrights to 10 years, or to make them enforceable only for commercial use of the work, you wouldn’t object?

Perhaps the disagreements here aren’t as deep as they seem.

80

roy belmont 06.10.09 at 11:50 pm

Tom West #44:
Re the youth thing:
In general, if something can be had for free, then it’s “just stupid” to pay for it – you spend your money on stuff that you can’t get for free elsewhere (tangible goods or stuff that hasn’t yet been pirated/cracked). Interestingly enough, the concept of the morality of piracy doesn’t even come up.
The Clovis point gets used as an archeological time/date stamp because it was such an obvious improvement its adoption was pretty much immediate following contact.
That process likely had very little proprietary gimme-gimme and/or withholding-for-profit, though as IP it’s pretty strong as a new and central change-making invention.
What’s now called music in the public domain was once all the music there was. For most of its existence as a human art form music was in that domain and of it entirely. Heard and passed on, received and sent.
Starting with the legal enforcement of copyright issues and the publication of sheet music, music began its descent toward commodity, and once recorded versions of music became real tangible artifacts that descent was complete.
The travesty of George Harrison being sued over the melodic echoes in “My Sweet Lord” by men who had nothing to do with any music creation but merely amassed the legal rights to the work of less legally sophisticated artists is a key example of how wrong all that crass perspective gets.
Now the youths, as feral consumers but not as revolutionaries, return toward the original context of music as experienced outside any mercantile context.
Music’s just there, the price tag is not integral or necessary, so Darwinian excision takes place.The price tag feeds the middle-man who may or may not have contributed some energy toward the diffusion and participatory enjoyment of that music, but is clearly not necessary to the actual process.
What’s shifting between the old and young is we all grew up with the price tag attached as an essential feature of the commodity, and the kids are growing up without that. Ours was a false paradigm, a skein of mercantile illusion.
Attackable too is the notion of “entertainment” itself as trivial luxury. Music accompanies every important ritual passage we make except birth itself. Everything else, weddings funerals graduations courtship etc etc has music solidly attached.
File-sharing may have some legal commonality with shoplifting, but it’s more like the freedom of artistic expression that we had through most of our history, than paying for anything and everything that’s vulnerable to commodification is.

81

Salient 06.10.09 at 11:55 pm

But when they have chosen to circulate their work, they are of course subject to the law of the land. This position seems to be very controversial here.

No, we agree on that, I think.

Life + 50 explicitly shows you do not want the artist to hold copyright over his/her work, because the artist would be dead at the end of Life and thus incapable of bringing a copyright lawsuit. It suggests you are defending the rights of a legal entity – an ‘estate’ which nowadays is usually corporately owned, for famous works – to obtain copyright for a work and then bring lawsuits against individuals who produce copies of the work or who create derivative works.

I’m not inclined to defend the right of an estate to hold near-absolute authority over distribution and derivations of a creative work for a very long period of time (an authority which can limit the author or musician’s use of their own work). And I’m still not sure why you have been defending this.

it might be interesting to have some permanence to authorship

Hard to see how one could comprehensively prohibit a company from making a contract with an author that would effectively sign over all the rights borne by the official copyright holder, though.

82

Righteous Bubba 06.11.09 at 12:32 am

Hard to see how one could comprehensively prohibit a company from making a contract with an author that would effectively sign over all the rights borne by the official copyright holder, though.

They’re the experts.

Maybe some sort of quickie divorce mechanism/formula that would liberate a copyright.

83

perianwyr 06.11.09 at 12:54 am

Novakant, do you believe patents should be similarly eternal? If so, why? If not, can you see a difference?

84

jack lecou 06.11.09 at 4:41 am

In a wider sense, I would argue for the absolute autonomy of the artist, which would include doing whatever they want in their art, choosing not to release works at all or destroying them, and against them owing any debt to society, because I think that’s pious nonsense and it is not how most art is produced anyway. But when they have chosen to circulate their work, they are of course subject to the law of the land. This position seems to be very controversial here.

That position isn’t controversial at all, as far as I can see. I agree with all of that 100%.

But then nothing but the very last point has anything to do with copyright. And earlier you appeared to be arguing NOT that the artist was subject to the law of the land when they released it into the wild, but in fact that the law owed them something special – a copyright.

I didn’t mean to say that artists could dictate the law, the current consensus of copyright lasting for a lifetime + 50 years or something along those lines seems very reasonable to me.

I doubt it’s accurate to describe this as a “consensus”. I think most here probably view this kind of absurdly extended copyright as something of an abomination. A complete twisting of the intended effect of copyright in favor of a small handful of corporate interests and damaging to artists, art, and society.

85

Omega Centauri 06.11.09 at 5:10 am

We’re all talking about artistic content here. Music and writing is the easy stuff, i.e. the cost to create the content was not particularly high. Music would still be created if there were no IP rights whatsoever attached to it. The musician/author still can make plenty via personal appearances and consulting type activities. Next up you have software, which may vary from relatively trivial exercises, which any smart programmer could reverse engineer, to programs that require the long term efforts of dozens -or hundreds of highly paid professionals. Still the direct cost of an illicit copy is small, but the potential loss of revenue could be significant to discourage the creation of such products were the protections to get too small. Then we have stuff like industrial and pharmaceutical patents. Often many tens or hundreds of millions were spent pursuing the specialized knowledge needed to come up with the breakthroughs.

So on one end of the spectrum represented by say music and writing, the cost to society (in terms of content not created) from weaker IP rights arguably is pretty small. But, on the other end, unless some other source of research/development funding can be created, the potential loss to society from things never created could be pretty large. Should all of this stuff be accorded the same laws/degree of protection?

86

sg 06.11.09 at 7:47 am

Hey Novakant, do you never borrow or lend books? Refuse on principle to buy secondhand books and clothes? Deny your friends’ music in the car on road trips? When you and your mates rent a dvd, do you insist on everyone paying the full rental price to the store? Or are you secretly a thieving scoundrel as well?

87

Zamfir 06.11.09 at 8:39 am

Life + 50 explicitly shows you do not want the artist to hold copyright over his/her work, because the artist would be dead at the end of Life and thus incapable of bringing a copyright lawsuit. It suggests you are defending the rights of a legal entity – an ‘estate’ which nowadays is usually corporately owned, for famous works – to obtain copyright for a work and then bring lawsuits against individuals who produce copies of the work or who create derivative works.

Well, there is a good reason to allow such legal entities, even if you are purely concerned with the artist. Thh ability to sell, or just lease out, your rights allows you to off-load the administrative tasks of enforcing them. The more you want to focus creative rights on the artist as a person, the more you encourage that the only aritists who can live of their work are those who spend most of their time on the business side.

And the longer a copyright runs ofter your death, the more you can receive for it now, while you are alive. The travesty of the Mickey Mouse Act is not so much that it sets such a long time scale, but that it does so after the fact, so companies got rights cheap that are now made more valuable.

In many artistic and creative fields, the ability to sell your creativity for a fixed, “good enough” price is what makes a full-time job possible.

88

Tom West 06.11.09 at 10:17 am

lemuel
#56
I tend to think the lifetime of the author or 25 years (whichever is more) is reasonable. I just have to hope that I don’t outlive my spouse :-)

#58
You also might want to reconsider whether the fact that “most [IP producers] never make it above poverty level” is really an argument in favor of the existing system of IP protections.

(I thought Novakant was setting the local record for pro-IP chutzpah. But Tom West’s “the current IP system screws artists royally, therefore we must defend the current IP system for the sake of artists” looks like a new winner.)

If there are 6 billion people on the planet, perhaps 1 billion would like to be writers :-). So, realistically, someone or something is going to have to decide who can make a living from writing unless we create a massive transfer from people-who-don’t-want-to-be-writers to the people-who-want-to-be-writers class.

To my mind, the fairest judge for who gets to make a living off their writing is the market. It’s a long way from perfect, but every other method devolves to something worse very quickly. (I certainly don’t have anything against government support for arts, but it should not be the sole arbiter of who gets to produce art, and we simply cannot support everyone who would like to do so.)

89

Tom West 06.11.09 at 10:30 am

Ginger, #59

Yes, IP is not like physical property. I’m just asking why, if you to be unlucky enough to produce work in a digitizable medium you should have your work confiscated for the good of society sooner than those who produce goods or services? (How’s that for framing a question?)

Also, if we were going to pedantic about it, shouldn’t an author be able to lease IP with enough provisions to prevent legal copying even in the absence of IP laws? I think IP laws would be a benefit to society simply on the basis that it means that artists wouldn’t have to place the consumers under ridiculous restrictions simply to have a hope of making a living.

As for squatting, I certainly believe that copyright should not be extended indefinitely without some work on the part of the author. If you abandon the work or more likely, are dead), then it should be up for better social use.

90

Tom West 06.11.09 at 10:38 am

#67 Arguing that people won’t write without compensation in the comments to Crooked Timber is sort of like using OpenOffice to write an essay on why office software can’t be developed open source.

:-)

I’m not arguing that in the absence of IP laws, there wouldn’t be a substantial amount of writing. There’d probably still be huge amounts of fan-fic. But let’s just say the writers I know would be forced to abandon writing. They have houses to pay for, children to raise, rent that is due, etc.

91

Tom West 06.11.09 at 10:53 am

#76, Down-and-out

Why shouldn’t copyright expire during the artist’s lifetime, Novakant?

Not addressed to me, but I’ll give one reason, albeit maybe not a good one. For a number of authors, there work, characters and world they’ve created is much like their young children. Losing control of that work and seeing it repurposed by strangers is about as welcome as seeing photos and names of your children repurposed by others.

No, you children are not harmed (the original work still exists), but the result could still be profoundly upsetting. (Hi, you’re children can now be used to sell cigarettes or even better, appear in a pornographic context (fan-fic, anyone?)!)

It’s probably a small reason compared to the right to continue to economically exploit the results of one’s labours, but for me, it’s not an insignificant one.

92

Ginger Yellow 06.11.09 at 11:06 am

I’m just asking why, if you to be unlucky enough to produce work in a digitizable medium you should have your work confiscated for the good of society sooner than those who produce goods or services? (How’s that for framing a question?)

That is indeed heavy framing. The obvious answer being that using the word “confiscate” is begging the question, and pretty obviously inappropriate. The content producer is still able to use the work as he/she sees fit. What’s been confiscated, if anything, is potential future revenue. iTunes is the biggest music retailer in the UK and in the US, which suggests that work in a digitised, let alone digitisable, medium is still able to provide substantial revenue despite rampant piracy. Not to mention the fact that patents, which usually involve phsyical goods, actually have vastly shorter lives than copyright.

As for squatting, I certainly believe that copyright should not be extended indefinitely without some work on the part of the author.

Fair enough. It’s interesting that under current law, trademarks have to be protected to be valid but copyright doesn’t.

Also, if we were going to pedantic about it, shouldn’t an author be able to lease IP with enough provisions to prevent legal copying even in the absence of IP laws?

Why should they? I mean, I’m struggling to think how this would even operate – you can’t be bound to a contract you haven’t signed or otherwise agreed to.

To be clear, I don’t think that there shouldn’t be IP laws. What I’m saying is that the current laws have been disastrously twisted from their proper purpose and on top of that have proven woefully inadequate at their shaper’s purpose in the face of modern technology and changing mores. As a result, they’ve disincentivised the various creative industries from adopting business models that would both be more profitable and would provide more benefits to consumers and society as a whole. They need to be fundamentally redesigned so that they are fair to both creators and consumers and so that they benefit society by promoting the creation and sharing of ideas. I’m very open to suggestions, but I lean toward some combination of compulsory licensing, shorter terms and much more freedom for non-commercial use.

93

novakant 06.11.09 at 11:31 am

I’m not inclined to defend the right of an estate to hold near-absolute authority over distribution and derivations of a creative work for a very long period of time

It is difficult to generalize here: some estates do great work in preserving the works of artists and the royalties are used to finance such efforts, others simply reap the financial benefits and do nothing. Generally, I don’t see why the children or grandchildren of artists should be treated any differently than the heirs of a business, which doesn’t get taken away from them either after the founder’s death. But maybe the ownership of copyright after the artist’s death should be bound to obligations to preserve the artist’s work and if the heirs don’t comply with those, the copyright could be taken away.

So if a law were passed to limit copyrights to 10 years, or to make them enforceable only for commercial use of the work, you wouldn’t object?

I would object to 10 years, since I think it’s much too short, but of course I would accept it as the law, as I do currently in other cases where I disagree with the law. Artists, however, might choose not to circulate their work in countries where they think copyright laws are unfavourable to them and generally these laws only work if there’s a consensus among most countries. I would like to allow more genuinely non-commercial use by educational and non-profit institutions etc., but there is the problem that such usage rights might be exploited for less benign purposes.

That position isn’t controversial at all, as far as I can see. I agree with all of that 100%.

I should have phrased that better, I meant my position as a whole, but I’m glad you agree on my wider point regarding artistic autonomy. Yet, when you say that copyright is “something special” granted to the artist by society I strongly disagree, because I think that a.) intellectual property is property in a genuine sense as it is a good that generates profit and b.) you are unfairly singling out artists as receiving special protection, while all sorts of people in society receive all kinds of protection. The most obvious example which I mentioned before: society protects the property rights of everybody, so why should the property of artists not be protected. Another example: many professionals rely on their good reputation to generate profit and if someone smears them, they are protected by libel laws. Then there are all sorts of laws limiting the liability of professionals. Society protects property rights in general and beyond that many groups of professionals in order to ensure that they can do their work.

I doubt it’s accurate to describe this as a “consensus”.

It is the legal consensus in most countries.

94

Steve LaBonne 06.11.09 at 12:25 pm

It is the legal consensus in most countries.

That’s not a “consensus”, it’s the corrupting operation of multinational corporate power.

95

Henri Vieuxtemps 06.11.09 at 12:55 pm

The most obvious example which I mentioned before: society protects the property rights of everybody, so why should the property of artists not be protected.

Look, come on, you are ignoring all the previous comments as if they didn’t exist, and that’s a really bad way to make an argument; you should try to respond.

If I download and read a book you wrote, the book itself remains safely in your possession, I have caused no damage to your property; the police, the army and the navy all stay on guard to preserve the manuscript.

What you’re demanding is not protection of your property, but something significantly different.

96

novakant 06.11.09 at 1:15 pm

it’s the corrupting operation of multinational corporate power.

Yeah, Victor Hugo and his pals were really only corrupt agents doing the bidding of multinational corporations.

97

Salient 06.11.09 at 1:28 pm

Novakant, can you define “intellectual property” for us? Perhaps we’re not in agreement. I have a hard time understanding something that doesn’t exist in physical form as “property,” and I’d like to know what you’re using the term to mean.

As for protecting the property of artists — specifically, from what? Can you give some examples? If you write a book with a character named Tracy McCoy, do you think use of that name should be restricted? Mention of the character’s recognizable features? A guest appearance of that character in a different work? If you write the lyric “I love you unbelievably” in a song, is that four-word phrase sufficiently nonstandard to be protected?

Should an artist have the right to say, “I want all copies of my work destroyed” and have that carried out by the state?

98

Steve LaBonne 06.11.09 at 1:33 pm

It’s noteworthy that the US was not part of that French-driven “consensus” for quite a long time- not till 1976, in fact. (As well it shouldn’t have been since the life + 50 years is grossly at variance with the spirit of Article 1 Section 8.)

99

Tom West 06.11.09 at 1:51 pm

What you’re demanding is not protection of your property, but something significantly different.

As I said earlier, I like the counterfeiting analogy. You don’t necessarily lose anything physically, but there’s no getting around the fact that you are losing. And like counterfeiting, if it’s at a small level, nobody is going to care about strict enforcement. But when you start telling people that what they thought they owned (their bank account) is now worthless because of it, they’ll be ready to see counterfeiters strung up on the spot.

I do think we need to separate the desire of some businesses to maximize their return from their IP by protecting it forever with the desire to see their IP not rendered worthless by technological advances used illegally.

The reality is that law, even as it was construed 30 years ago before the “evil corporations”, is being broken massively. Because the victims are relatively few and the damage done to them hard to quantify, the government has failed to enforce the law (although they still seem to be pretty quick to enforce their IP equivalent (i.e. currency)).

As for patents, I think they’re a different kettle of fish. Done properly, they do provide a means for better dissemination of technological improvement. Where they don’t, the law should be changed (business process patents anyone?).

100

Zamfir 06.11.09 at 2:04 pm

Salient, property itself is not as clear-cut as that. Think of owning land, perhaps the traditional version of property if there is one. It includes the right to at least some depth of soil, but that’s hardly the core. An owner is allowed to refuse people above his land, but not to refuse aircraft from flying over. You get to determine what activities and buildings are allowed on that land, but there are heavy restrictions on that too, of the “residential use, no more than three floors” kind. You get some preference if there are resources below your land, but you do not automatically get all of that. You can pump water, but not indefinitely. Etc,etc.

Owning a (part of) a company is an even clearer example where the meaning of property is no more and no less than a very complicated set of laws on specific rights and liabilities that together form a “company”. It has some resemblance to owning land or goods, but no more than a resemblance. What about owning money? Or part of the electromagnetic spectrum? A dog?

IP is just another set of, to some extent arbitrary rights, this tme in connection with some information pattern. Owning land gives me the right to determine whether people are allowed at a certain location, IP whether they can use that pattern. We can discuss how far those rights should go, what form they should have. But saying they are not as real a form of property as owning a piece of clothing elevates the concept of property to something more intrinsic than it really is.

In a similar vein, IP is a set

101

Zamfir 06.11.09 at 2:06 pm

As I said earlier, I like the counterfeiting analogy I thought counterfeit laws were literally a form of copyright, just with very heavy punishments?

102

Salient 06.11.09 at 2:15 pm

Salient, property itself is not as clear-cut as that.

Granted. I’m having a hard time understanding what Novakant understands IP to be. If I write a book, how large a role would Mickey Mouse have to play in it before I’ve violated Novakant’s understanding of intellectual property?

Or part of the electromagnetic spectrum?

Your other examples make sense, but I can’t understand how one can “own” this, and it disturbs me to think such ownership is recognized. It’s like owning the air: the spectrum (e.g. radio waves) should be protected as a public good and regulated according to the public interest, but no individual ownership rights should be recognized. Usage rights, OK. But “ownership” approximately means “the right to unilaterally prevent others from using the resource, subject to governance in the public interest” (this clause accommodates laws prohibiting discrimination etc).

103

Ginger Yellow 06.11.09 at 2:36 pm

“As I said earlier, I like the counterfeiting analogy. You don’t necessarily lose anything physically, but there’s no getting around the fact that you are losing. “

It’s a better analogy than theft, but it’s still not exact. It’s pretty intrinsic to the notion of counterfeiting that the copy is a fake – of lesser quality in some way than the original. This is (primarily) why counterfeiting devalues the original, because holders of the original can’t be sure they actually have the original. This is far from necessarily true with IP infringement. Again, I think it’s best to avoid putting too much weight on analogies in such an unintuitive area and just work with what it is – the infringement of someone’s legal rights.

104

Zamfir 06.11.09 at 2:45 pm

Radio stations have the right to uniquely use a part of the spectrum, for a limited amount of time in a limited geographic region. That’s very close to what you describe as property. They are not always allowed to sell it on (although you can of course buy the company owning that right) , but they own it at least as much as you can own a ticket for a concert.

But unlike a ticket, spectrum licences and IP do not have a specific counterparty over which you have a right, like the concert organizer, instead you get a government-granted right over all people in its jurisdiction. But that is pretty much the same government-granted right you have that others cannot wear your clothes without your permission.

105

Ginger Yellow 06.11.09 at 3:33 pm

I’d say a radio licence is much closer to a lease. Licencees have to meet ongoing obligations in order to keep their licences, which is not true of a concert ticket owner.

106

Henri Vieuxtemps 06.11.09 at 3:45 pm

@99 I am interested in personal use, so I don’t know how counterfeiting fits here; maybe it is something like buying a fake Rolex for yourself, except that no money changes hands.

Suppose I feel the urge to watch some old movie, say some spaghetti western or something. I could try to find it in a video rental, drive there, wait in line, pay 5 bucks, get back, watch it, return the next day. Or I could type filetype:torrent “movie title” in google, click, and in a couple of hours I have a 700MB avi on my desktop; I’ll watch it on my monitor and delete. Is this anything like counterfeiting?

Or maybe someone recommends a book on this blog. Yes, I can go to Amazon and order it (I’ve done it many times), pay 20 bucks and get it delivered in a few day only to find it completely unreadable after the first 5 pages. That’s just a waste. I want to download the book, read it on the monitor, and if I like it a lot maybe I’ll buy it (unlikely but possible). This sort of thing. Am I being unreasonable?

107

jack lecou 06.11.09 at 4:05 pm

Yet, when you say that copyright is “something special” granted to the artist by society I strongly disagree, because I think that a.) intellectual property is property in a genuine sense as it is a good that generates profit and b.) you are unfairly singling out artists as receiving special protection, while all sorts of people in society receive all kinds of protection. The most obvious example which I mentioned before: society protects the property rights of everybody, so why should the property of artists not be protected. Another example: many professionals rely on their good reputation to generate profit and if someone smears them, they are protected by libel laws. Then there are all sorts of laws limiting the liability of professionals. Society protects property rights in general and beyond that many groups of professionals in order to ensure that they can do their work.

I did not mean to imply that creators were the only people that receive a special right. I am trying to get at the idea that copyright is, like a lot of other things, a means to an end, not an end in itself.

Zamfir brought up shares in a company as another example. This is also a form of property that is created by a complex assortment of laws and conventions, and it doesn’t necessarily exist as some kind of natural right. The joint stock corporation is just an invention, a public policy mechanism for facilitating certain kinds of commercial activity. A means to an end.

We as a society should therefore be able to debate whether that mechanism is serving its purpose, whether its in need of adjustment or modification (e.g., how much corporations should be treated as “persons”), or even whether some other mechanism would serve our purposes better.

And when we have that debate, it is not about confiscating things from shareholders, or depriving them of autonomy, or of being anti-commerce in general (the opposite, in fact, since the idea is always to improve upon the results).

It’s the same with copyright: We want to see artists and authors and inventors free to create things. We want to give them the support to do it. And we want to spread the benefits of their creations far and wide. Copyrights and patents are means toward those ends – but they aren’t necessarily the only ones, and they aren’t necessarily tuned properly if they are the ones we want.

108

Tom West 06.11.09 at 5:23 pm

#103 Ginger, I agree that the counterfeiting is not a perfect analogy, but it seems very close indeed, at least for making it clear why it’s not a victimless crime.

If I’m producing *perfect* counterfeits, the problem is not that your wallet will be filled with unusable bills, it’s that the bills in your wallet are now part of much diluted money supply. If you can simply inflate the money supply at will, the currency is not going to be worth very much.

Copying of an IP simply inflates the supply of that IP, rendering the owners IP much less valuable.

#106, Henri, Is this anything like counterfeiting?

I’d say the torrent supplier has certainly devalued the value of the IP by providing the ability to copy the movie at will for free. How much harm has been done can be debated forever.

As Ginger put it, the analogy isn’t perfect. The analogy is mostly meant to show that serious harm can be done without loss of the original and governments consider that loss so serious that they stomp on it hard.

However, if ‘free’ is the default value of IP, then the arts world is certainly going to be a lot different in a decade or two’s time, especially as the younger ‘downloading is a right’ generation grows up. Certainly I’d advise my children against going into any field where their what they produce can be rendered worthless by digital copying.

I’m heavily skeptical about live performance of music being a good source of income once the promotion of bands dies. Big money-making performances have always been more about identity than the music, and once there’s no-one to spend the money to do the marketing to prove that everyone loves the same thing and link the music with the identity, bands are back to playing bars to avoid starving.

109

Righteous Bubba 06.11.09 at 5:37 pm

I’m heavily skeptical about live performance of music being a good source of income once the promotion of bands dies.

The promotion is songs existing and being out there. A lot of small bands can make pretty good money from performance over any sales of songs.

Performance doesn’t solve any income problem for those who can’t play out.

110

Tom West 06.11.09 at 5:38 pm

#107, jack lecou,

We as a society should therefore be able to debate whether that mechanism is serving its purpose

Okay, how about the difficult question. Given that any IP law policy is more or less irrelevant unless the laws are actively enforced, and given that active enforcement with penalties severe enough to have a deterrent effect are going (are already) seen as hugely draconian, what should be done about enforcement? If we don’t address *that* issue, then we’re as good as striking the IP laws off the books as they only act as a fig leaf so that the government can pretend it cares.

The trouble is that technology has destroyed the possibility of compromise. The only way to prevent wholesale destruction of IP ownership is with policies that restrict everyone’s rights including those that they have historically enjoyed, or by making penalties so draconian that there will be at least some deterrent effect from the way out-of-proportion penalties

I’ll be darned if I can see a solution. Someone’s life is going down the toilet in the next two decades, and I’ll bet 3-1 it’s the IP producers.

111

Tom West 06.11.09 at 5:43 pm

A lot of small bands can make pretty good money from performance

Really? Are we talking a middle class salary for a job that requires massive amounts of travel good money (~$75-100K/year/band member after costs ), or are we talking guy in his 20’s with no house, no wife and no children good money? (Honest question – I have no idea.)

Of course, I’m talking only about those 1-2% of bands who succeed well enough that people are willing to pay to hear them.

112

Henri Vieuxtemps 06.11.09 at 6:05 pm

Not only performance, surely they can charge commercial entities, like radio stations.

How much harm has been done can be debated forever.

See, that’s the thing: the harm, if any, is mostly hypothetical, especially if we choose to ignore all that highly unconvincing rhetoric about sacred ‘property rights’. The benefit, OTOH, is significant and undeniable.

113

Righteous Bubba 06.11.09 at 6:14 pm

Really? Are we talking a middle class salary for a job that requires massive amounts of travel good money (~$75-100K/year/band member after costs ), or are we talking guy in his 20’s with no house, no wife and no children good money? (Honest question – I have no idea.)

I have a friend who is in a band who will never have a hit but are well thought of in the indie scene. He – married songwriter and performer with no children – can pull in $100000 a year touring; I dunno what those backing him up make. Important to note, though, that he doesn’t owe a large record company that would use him to subsidize marketing, touring, and recording enterprises. I’ve known people on major labels who were more well-known but substantially worse off because they spent their performing lives paying back the outlay the record companies were making on their behalf. Scare quotes where appropriate.

114

jack lecou 06.11.09 at 6:42 pm

The trouble is that technology has destroyed the possibility of compromise. The only way to prevent wholesale destruction of IP ownership is with policies that restrict everyone’s rights including those that they have historically enjoyed, or by making penalties so draconian that there will be at least some deterrent effect from the way out-of-proportion penalties

I’ll be darned if I can see a solution. Someone’s life is going down the toilet in the next two decades, and I’ll bet 3-1 it’s the IP producers.

That’s absurdly apocalyptic. I think you need to make distinction between preserving the existing mix of mediums and benefit distribution, and having a thriving creative culture in general. The latter can exist in many forms, and it’s not at all clear we’ve got the best one going on.

For one thing, there’s theory and evidence that we don’t need certain forms of “IP” at all.

Patents and copyright are different balls of wax, but with patents, it may well be that the “founder advantage” of being the first to innovate is more than enough reward. At the very least, patents on things like business methods and software should probably be eliminated. The existing system also offers perverse incentive in fields like pharmaceuticals, where it’s more profitable to patent 27 different slightly modified Viagra molecules than it is to develop a malaria vaccine. Something like prizes may be a better mechanism in those areas.

It’s a similar story with copyright–reduce, eliminate, modify.

Music has already been discussed, but it really is true that the vast majority of bands make no money on recordings. There’s more money in live performances and merchandise. (In fact, you’re probably losing money if you sign away your profits to a record producer, and simultaneously rob yourself of the ability to use your recordings as a promotional good.) Now, certainly the distribution of gains might change, and a handful of megabands and recording studios would get a smaller share of the pie, but music and culture can thrive in a world without (enforceable) copyright. (Perhaps do better than now, even. See “Grey Album, The”.)

There’s also a lot more room for compromise than you’re imagining. For example, we could have limited term copyright that gave artists some creative control over things like commercial use (but not for too long–we don’t want to impoverish the public domain), but include some kind of built-in open license for non-commercial use. Downloads could be financed by a tax on internet use or storage devices or whatever, and the revenues would be distributed back to artists based on popularity.

(Of course, it’s important to consider all of this medium by medium. The optimal approaches for books and for tv shows aren’t necessarily the same.)

115

Ginger Yellow 06.11.09 at 6:57 pm

“Big money-making performances have always been more about identity than the music, and once there’s no-one to spend the money to do the marketing to prove that everyone loves the same thing and link the music with the identity, bands are back to playing bars to avoid starving”

Most bands are already playing in bars to scrape a living, and did so long before the internet or even cassettes. They don’t have much in the way of marketing money, and now they can put their songs for free on Myspace etc to promote themselves.

“I’ll be darned if I can see a solution. Someone’s life is going down the toilet in the next two decades, and I’ll bet 3-1 it’s the IP producers.”

I pretty much agree. The point is that existing IP law is going to do nothing to stop this, and clinging to it and the business models it used to support is actively preventing a more viable model appearing. In the next two decades, everyone will have Spotify and/or Last.fm players (or whatever their successors are) in their cars and handheld devices and most will be paying for music in some form, whether it’s advertising or subscription. iTunes and Amazon show that people are willing to pay for digital music in large numbers – digital sales made up 30% of industry revenue last year – even given the relatively easy availability of totally free music.

I don’t mean to paint a utopian picture – I don’t doubt that the unit revenue, so to speak, of music will be considerably less than in the past, but so will the unit cost of production and distribution. The trick is going to be to find a way to maximise the one and minimise the other. Doing so will look very different from how it did when publishers could act as very effective gatekeepers, but it’s eminently possible.

I have to say I think the status quo argument is much stronger with books. There’s no real equivalent of live performance or licensed commerical use, and for-profit digital distribution is very much unproven on a mass scale. Authors don’t really have anything to fall back on if they can’t sell their published works. The Google Books settlement is a very interesting development, but from what I’ve read about it, it doesn’t seem satisfactory to either readers or authors.

116

jack lecou 06.11.09 at 7:12 pm

If I’m producing perfect counterfeits, the problem is not that your wallet will be filled with unusable bills, it’s that the bills in your wallet are now part of much diluted money supply. If you can simply inflate the money supply at will, the currency is not going to be worth very much.

Copying of an IP simply inflates the supply of that IP, rendering the owners IP much less valuable.

The analogy is definitely flawed. For one thing, the inflationary losses from counterfeiting currency are real. Currency is used to purchase goods and services that are, mostly, rivalrous, and if I counterfeit money for myself to purchase them, I decrease the quantity other people are able to purchase.

But digital copies are not rival. All else (e.g., the artist’s income) equal, the optimal distribution is to give everyone a copy who wants one. It’s preventing the free copying of non-rival goods like this that imposes very real (and very large) social costs.

You can’t paper over those costs by talking about the “right” of the creator to some hypothetical income from a hypothetical sale that wasn’t going to happen anyway. It’s at least as natural to think of a “right” to freely copy anything I haven’t promised not to, especially because the latter right doesn’t require any intrusive and draconian enforcement to work.

117

jack lecou 06.11.09 at 7:19 pm

I have to say I think the status quo argument is much stronger with books. There’s no real equivalent of live performance or licensed commerical use, and for-profit digital distribution is very much unproven on a mass scale. Authors don’t really have anything to fall back on if they can’t sell their published works. The Google Books settlement is a very interesting development, but from what I’ve read about it, it doesn’t seem satisfactory to either readers or authors.

This is also in a longer reply to Tom that seems to be stuck in moderation, but there are definitely compromises and alternatives to copyright that can allow people to download and enjoy things while also paying authors.

One approach might be to allow some kind of limited copyright giving creators some control over things like commercial use (for a limited time!), while also including mandatory non-commercial licensing for downloads. Revenue could be collected from a tax on internet use or storage devices or something, and distributed back to creators based on popularity.

118

Tom West 06.11.09 at 7:29 pm

iTunes and Amazon show that people are willing to pay for digital music in large numbers

To be honest, I think it’s ‘old people’ who are willing to pay for digital music, which keeps it viable for another 10-20 years. My exposure for to high schoolers (under the guise of Computer Science education) has been quite an eye-opener for me. The fundamental difference is the near universal belief that downloading music/movies/books is no more unethical than picking up money off the sidewalk. Literally. Unless that understanding changes as they get older, then paying for music or moves is “just stupid”. (Sorry, that quote remains with me some years later. I don’t think there was a person in the class who disagreed with him…)

At that point, any attempt to make customers pay is simply seen as government/RIAA stealing from them. That’s an attitude that makes it clear that IP holders are dead, short of the some unlikely measures. I strongly suspect it’s why the RIAA and its ilk are going the draconian route. It’s not a good one, but there is no viable business model if your audience thinks they’re entitled to your work for free.

The kids I spoke with should be in university now. Can anybody relate whether the attitude is the same among the undergraduates? (My own experience twenty years ago with software piracy was “I know it’s wrong, but I have no money”, which generally led to software purchases when we finally got money.)

119

jack lecou 06.11.09 at 7:43 pm

The fundamental difference is the near universal belief that downloading music/movies/books is no more unethical than picking up money off the sidewalk. Literally.

Not even finding money on the sidewalk, more like looking at a picture. And I can’t see anything in particular wrong with that belief. It seems pretty natural. There’s certainly not necessarily anything in conflict between that and the belief that artists and creators should also receive a fair reward for their efforts.

At that point, any attempt to make customers pay is simply seen as government/RIAA stealing from them

You’re right that animosity toward reactionary groups like RIAA et al. might be a hindrance. The sooner they’re upstaged, the better.

120

Righteous Bubba 06.11.09 at 7:48 pm

Not even finding money on the sidewalk, more like looking at a picture.

Or listening to the radio.

121

Ginger Yellow 06.11.09 at 7:54 pm

“To be honest, I think it’s ‘old people’ who are willing to pay for digital music, which keeps it viable for another 10-20 years. My exposure for to high schoolers (under the guise of Computer Science education) has been quite an eye-opener for me.”

Depends on your definition of old, I suppose. I’m under 30 (just) and very familiar with torrents and so on, but I’ve spent hundreds on digital downloads. TV’s another matter, mainly because the options in the UK are minimal outside the BBC and pretty much terrible. I’m perfectly willing to accept that the younger generation are less willing to pay for media, but even so, there’ll always be people who are relatively less tech savvy.

More to the point, people will find a way to provide value. Already, Last.fm provides a value added service that you can’t get just going to torrent sites, and likewise Spotify and iTunes are much more convenient if you want a given track immediately.

“Unless that understanding changes as they get older, then paying for music or moves is “just stupid”. “

In a way, though, they’ve got a kernel of a point. In the olden days of the 80s and 90s, most young kids’ access to music was via the radio or their siblings’ record collection, and as far as I know much of it still is. TV is “free” to them too. Even now, lots of music is “free” on the radio, but the choice is nothing like what it is online, and of course it’s not on-demand. The music and TV industries need to make a business model that replicates or even improves that user experience in a world where people expect to be able to take their media with them and transfer between devices . Instead we get responses like the lawsuit against Real Networks, for creating software that allows users to make copy-protected digital back-ups of their DVDs.

122

Tom West 06.12.09 at 1:03 am

Ginger, I think you are right that the only hope is in ‘value-added’ services. In other words, the actual content is worthless.

The music and TV industries need to make a business model that replicates or even improves that user experience in a world where people expect to be able to take their media with them and transfer between devices . Instead we get responses like the lawsuit against Real Networks, for creating software that allows users to make copy-protected digital back-ups of their DVDs.

In the end, I honestly think that the industry’s response is irrelevant. The only effect is going to be “yeah, the industry got what was coming to it” instead of “gee, it’s sad that the industry died”. No matter how responsive you are to your customers, “you can’t beat free”.

As someone pointed out, technology doesn’t guarantee that certain industries we like are viable. It’s quite likely that the era of newspapers and their effect on limiting corruption in government is coming to an end.

Certainly my wife, a reasonably successful novelist, is looking carefully at her future in 10-20 years (the time it will take before e-books are so common that physical books no longer hold much attraction and the Cory Doctorow strategy collapses). I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

123

Henri Vieuxtemps 06.12.09 at 6:58 am

In other words, the actual content is worthless.

Not commodified; that’s a far cry from ‘worthless’. Opensource software is not commodified, but most of it is not worthless, and some of it is much more worthy than its properly commodified equivalent.

124

jack lecou 06.12.09 at 2:36 pm

The only effect is going to be “yeah, the industry got what was coming to it” instead of “gee, it’s sad that the industry died”. No matter how responsive you are to your customers, “you can’t beat free”.

I don’t know why anyone would have been all that sad anyway.

As Henri pointed out, there is tremendous value inherent in our collective creative output. And technology is now allowing more and more of this potential value to actually be used and enjoyed.

The only complaint seems to be that a revenue model invented in 1710 isn’t quite keeping pace. It’s like monastic scribes complaining that the printing press is both putting them out of work and letting the rabble learn to read. Quel apocalypse. You’ll forgive me if I’m not yet convinced that we’re passing into a new dark age.

“Copyright is dead. Long live creativity and culture.”

I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

My best wishes to you and your wife, but whatever changes are occurring, I very much doubt that smart, creative people are going to have much to worry about in the end.

125

James Hofmann 06.12.09 at 2:41 pm

In a lot of ways what we are seeing change is the collapse of certain economies of scale.

The main thrust of the industrial era has been to push more people into cities and create products on bigger and bigger scales. Information followed with this and we ended up with systems tuned for “one-size-fits-all” content – big book publishers, Hollywood films, national newspapers, TV and radio. It’s all done on wastefully large budgets, of course, and they make it back only because of that scale.

The incentive for doing this is “cheaper.” But cheaper-by-scale has been yanked from beneath our seats with the advent of cheaper-by-online. It doesn’t make much sense to have a big national publisher/distributor of content pushing their weight around in the physical world anymore. But it does still make sense to have aggregation and portals; the difference is that a portal’s claim over the content is much weaker. There’s a lot of room for portals and a lot of room for competition among them. And it also still makes sense to have local-level publishers making some physical product, but the motive is more oriented to community-level service rather than national profit.

So our information society, at least, is likely to stratify on local/global boundaries. Artists may market to all audiences online, or they may seek the support of their community. We are likely to end up with a unique economy that deals with information exchanges differently from physical goods, owing to their non-scarce, non-rivalrous nature. Regardless, companies are no longer really in *control* of the messages.

Of course, the question then is “what is the role of government now?” It’s going to be weaker than it was. With the old IP businesses demolished, centralized thinking and the focus on a concentration of power can increasingly give way to localized thinking – within your field, your interests, or your community. But a national government is likely to remain viable until you can also do really good local manufacturing. Our present manufacturing is still biased towards large-scale corporate endeavors, and the effects of that on our economy are well known – to gradually pull everyone’s money in the general direction of the big businesses and drain the “local money” dry as the business scales up more and more.

The best we can do to combat that right now is to manipulate our currency to perpetually favor the local market, but the inefficiencies for interregional exchange make it a troublesome solution. However, if technology allows as much power to individuals in the creation of physical goods as with information – that’s the end of civilization as we know it. In a good way.

126

Salient 06.12.09 at 3:03 pm

I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

I’d anticipate books will be a special case in our lifetimes because people have learned to be so attached to the paper medium, even the young’uns who read.

In the end, I honestly think that the industry’s response is irrelevant.

I don’t know that I’m so fatalist as this. There’s a lot of money to be made here, plenty of people willing to spend it, etc. Recently read about a site in the design stage that lets you “sell your old MP3s” without even checking to see if you’ve deleted them. If I understood correctly, it’ll be OK with the RIAA because the relevant companies will get a 50% kickback. So, there’s ways to be profitably responsive.

127

Martin Ranger 06.12.09 at 4:15 pm

Part of the problem of this discussion seems to me the definition of “content” or art as a physical good. Then, the arguments of zero production cost and so forth are easily applied. A more useful approach (at least to me as a content provider) would be to define content as a service not unlike a haircut. After all, the cost of producing a haircut are zero. My granting the rights to what I have produced (at cost far above zero, I can assure you) is then equivalent to me providing a service. So then, one can rephrase this discussion. Since the cost of providing the haircut are zero, do I have the right to force the stylist to cut my hair? I mean nobody is losing out, society is better off and it is really easy to do.

The second argument, that whoever copies something would not have bought it anyway is such a non-starter that it is not even worth discussing. I mean, I wouldn’t have bought the new TV either.

128

jack lecou 06.12.09 at 5:40 pm

A more useful approach (at least to me as a content provider) would be to define content as a service not unlike a haircut. After all, the cost of producing a haircut are zero.

Ummm. How is the cost of producing a haircut zero exactly? Analogy fail. Try again.

(If you’re a live performer, the analogy is probably fine, though not because it somehow costs nothing to produce a haircut. Of course, live performances aren’t really threatened in all of this.)

The second argument, that whoever copies something would not have bought it anyway is such a non-starter that it is not even worth discussing. I mean, I wouldn’t have bought the new TV either.

Wishing an argument away doesn’t make it happen. The argument is that people have limited budgets, and they will almost certainly download and enjoy more things than they would have otherwise been able to buy:

Case A: In a given month, I buy 2 CDs of music, a DVD movie, and go see 1 movie in the theater. I spend, say, $60.

Case B: I can download things, so instead of A, I download 5 CDs worth of music, 3 movies, and then still have my $60 to go to 3 theater movies, and a live music show.

Explain how it is that anyone can claim to be losing money on the “hypothetical sale” of CDs #s 3, 4 and 5? And if they can, why can’t the live musicians or theater owners in B claim to be losing money on the hypothetical tickets to their show you didn’t buy when you spent the money on the DVD in A?

In both cases I spend about $60. It’s just that in the second case, there’s a lot more entertainment actually being enjoyed. Preventing people from freely copying non-rival goods doesn’t make them spend more money, it just reduces reduces the aggregate social benefit.

129

Kir 06.12.09 at 7:21 pm

Please, for the love of god, stop convolving the habits of ignoring IP laws and the open source movement.

To point out the blatantly obvious, several large and important pieces of open source are protected by IP law. The entire GPL system actually depends heavily on the threat of litigation (yes… IP lawyers) to make it work.

Whenever I hear someone mixing the two concepts up, I have to conclude that I’m not dealing with an idealist who thinks “information wants to be free”, but simply someone who thinks “I shouldn’t have to pay for anything”

130

John Quiggin 06.12.09 at 8:00 pm

Kir, has anyone done this here? It’s a long thread, but I couldn’t find a reference to open source.

But the general point, relevant to open source also, is that if any kind of protection is to be given to intellectual production, an approach (implicit in the term IP, and explicit in the rhetoric of its advocates) that ideas are just like physical goods is bound to fail. GPL is one way of moving forward from that.

131

Henri Vieuxtemps 06.12.09 at 8:09 pm

But we are not talking about ignoring IP laws, we are talking about different IP laws.

132

lemuel pitkin 06.12.09 at 8:33 pm

It’s a long thread, but I couldn’t find a reference to open source.

I did, at 67. The point wasn’t to conflate open source with ignoring IP, of course, but to illustrate that productive creative work is possible without the particular form of strong IP embodied in current copyright laws.

133

Tom West 06.12.09 at 8:36 pm

But we are not talking about ignoring IP laws, we are talking about different IP laws.

Except unless we allow essentially unacceptably draconian enforcement, then we defacto have no IP laws, regardless of what the law says.

Not commodified; that’s a far cry from ‘worthless’.

I meant worthless only in “what people are willing to pay for it”. Certainly not as a value judgment!

I’d anticipate books will be a special case in our lifetimes because people have learned to be so attached to the paper medium, even the young’uns who read.

I’d say that’s true until we have youngsters who grow up on e-book readers. (That’s my 10-20 years). For commercial fiction, a large portion of the market tends fairly young (they have the time to read for pleasure!)

To be honest, the accuracy of my “doomed” scenario really depends on whether the young lose the “I’m entitled to it for free” attitude when they get older. If they do, then only the market for youngsters is truly cooked. If they don’t, then it’s any digitally copyable media is in trouble.

Preventing people from freely copying non-rival goods doesn’t make them spend more money, it just reduces reduces the aggregate social benefit.

Jack, cheer me up. I need some modern examples of mass creativity and culture once all the monetary incentives have been removed. I’d hate to think we’re gaining social benefit only by eating our seed corn.

134

jack lecou 06.12.09 at 8:37 pm

But we are not talking about ignoring IP laws, we are talking about different IP laws.

Exactly. Something like GPL can fit in just fine with a less restrictive copyright regime.

GPL software doesn’t need draconian protection from kiddiez downloading GPL code off the internet. That’s encouraged. It doesn’t even need protection from parties from doing whatever they want with GPL code internally. All it needs is some protection from (mostly commercial) entities hijacking GPL code and distributing it in closed-source products.

It’s relatively easy to detect this kind of abuse, and to hold the infringing party responsible. Plus, unlike downloading music, it’s hard to point to any public harm coming from enforcing this kind of GPL restriction. Quite the opposite. After all, whatever entity wants to use the code, can. They just can’t pass it off as their own, or prevent others from viewing or improving it.

135

Righteous Bubba 06.12.09 at 8:42 pm

Jack, cheer me up. I need some modern examples of mass creativity and culture once all the monetary incentives have been removed.

http://icanhascheezburger.com/

136

jack lecou 06.12.09 at 9:21 pm

Jack, cheer me up. I need some modern examples of mass creativity and culture once all the monetary incentives have been removed. I’d hate to think we’re gaining social benefit only by eating our seed corn.

Well, I’d start by saying that to posit that “all the monetary incentives have been removed” is assuming too much.

We’ve already talked about music, and how the vast majority of musicians probably BENEFIT from the ability to share their music and promote their performances with the internet, a few major record producers and mega bands notwithstanding. This approach might be applicable, or at least adaptable, to a few other types of work too.

There’s been some mention of the fact that there’s always money in adding value here or there to transactions, convenience, portals, etc. And while probably not a big source, I’d anticipate some ramping up of things like corporate sponsorship, or private patronage for some kinds of works.

Then there’s explicit government funding. For example, although the NY Times has more readers than ever before, it’s still an open question about whether they’ll be able to make it in the long run. I think some kind of BBC-ish model might be one way to go for “authoritative” news sources like newspapers. (Frankly, I think this might improve coverage quality and pro-government bias. No more closing overseas newsrooms. And it’s not as if the NYT could have been much more ‘pro-government’ than in the lead up to the Iraq war – at least with government funding, everyone would be sensitive to the issue.)

We can also just look at this as a pretty standard externality problem–artists produce positive externalities–and try to patch things up with taxes and transfers. I mentioned earlier that you could have a tax on internet use, for example. It’s a obviously a little tricky to distribute the proceeds back to the creators in a way that nobody could possibly object to, but there’s definitely plenty of money there.

Finally, there could easily be some completely novel approach, even if it it takes us a decade or two to figure it out. Copyright itself was just an innovation in response to the technological change in an earlier day. That form of copyright may have run its course, but it’s a little early to be saying that there’s no possible innovation (or innovations) that can replace it.

137

Salient 06.12.09 at 9:24 pm

138

jack lecou 06.12.09 at 9:57 pm

I was going to get to the “amateur” part of the answer next, but Righteous Bubba probably makes the point more succinctly.

Technology is unquestionably making producing and distributing all kinds of media a lot easier. And entirely new types of media.

It’s easy to mock Youtube, Facebook, Twitter, or lolcats, and bemoan the decline of culture or whatever, but in some ways that’s probably a lot like the aforementioned monk bemoaning the spread of ‘tawdry’ vernacular novels. The fact is a lot of people spend a lot of time with these kinds of diversions, and apparently get something out of it.

Anyway, it’s clearly not all just brainless fluff. Blogs are an endlessly valuable medium, with experts and enthusiasts in all sorts of fields sharing ideas. Wikipedia, for all its flaws, is an incredibly valuable resource. Youtube has lots of good things on it. Even lolcats can be kind of profound on occasion. Etc., etc. And who knows what’s next.

The ease of production and distribution also opens up the field to a lot more “amateur” efforts for mass self-publishing in digital versions of the more traditional mediums: books, movies*, etc. It’s true that 99% of everything is crap, but there’s still a lot more stuff out there that people will enjoy–more than a publisher will ever want to print, or that than can fit on the shelf in a bookshop.

* I should have mentioned in the last one, but commercial movies are really in much the same boat as music: going to a theater is a social event, so it works a lot like a concert performance. Downloading and watching at home is a weak substitute. (It hurts DVD sales, but home movies are only a very recent phenomenon anyway.)

139

Righteous Bubba 06.12.09 at 10:07 pm

No fair stealing jokes! :)

I think my answer was funny, but I’m not sure about its status as a joke. Thanks to jack for following up and to the CT owners for supplying me with free art, entertainment, reportage, and ideas. Thanks to Tom West for doing some of that as well.

140

lemuel pitkin 06.12.09 at 10:26 pm

Ditto to 136, 138 and 139.

I’m sorry if Tom West’s wife’s livelihood (or at least her membership in the club of professional novelists) is threatened, but from the point of view of us here at CT, he is actually producing something more valuable for free than she is for money. After all, we’re reading his blog comments but not her novels.

141

steven 06.12.09 at 10:57 pm

John Q:

if any kind of protection is to be given to intellectual production, an approach (implicit in the term IP, and explicit in the rhetoric of its advocates) that ideas are just like physical goods is bound to fail.

But you never could copyright an idea, only the execution of it. I’m not convinced that the execution of an idea is so unlike a (non-book) physical good that any system based on their purported similarity is “bound to fail”. (For one thing, many physical goods are also executions of an idea.)

Of course, on the other hand, a claim that a digitally-reproduced novel or song is “just like” a can of baked beans is obviously silly, but I wonder whether that is a strawman. (Perhaps, after all, they called it “intellectual property” because it was obvious that it wasn’t exactly like ordinary property and so couldn’t just be called “property”.)

As regards Tom West’s wondering about what all this means for writers, I wrote something about that a while ago, and as far as I can see the self-righteous Slashdot-argument crowd still haven’t had any non-risible ideas.

142

John Quiggin 06.12.09 at 11:34 pm

Steven, your point about the name “intellectual property” had occurred to me vaguely, but you put it well and I agree.

For both you and Tom, an obvious question is whether there is a good example to show that fears about the end of IP are well founded; that is, a field of activity where the ease of copying, and the effective breakdown of many IP restrictions has meant that less, or less good, work is being done? For a more stringent test, is there a field where the result is that that less, or less good, work is available to the typical consumer? If there is no good example now, are there good reasons to think the future will be different?

In nearly every aspect of my life, the opposite is true. I have access to vastly more of everything that could be considered as a candidate for IP protection than I did 25 years ago.

143

bianca steele 06.13.09 at 12:43 am

FWIW I doubt computer software and software tools are a good model for book copyrights, as they are often more along the lines of, say, statistical methods than like papers, in terms of usefulness and how they’re used, and much easier to steal than either of the others were until really very recently. Also software requires maintenance and for this reason, among others, it can work best as a commons on occasion–so along those lines Wikipedia is more like what you’re comparing it against than Middlemarch. (This doesn’t apply so much to something like Linux, I think.)

Thinking about it, I wonder whether computer-based music sharing would have been so popular if CD copying equipment had been as easy to find as dual cassette decks.

144

novakant 06.13.09 at 12:00 pm

For time reasons I won’t respond to all the points that have been made since I last posted, but I think Tom made some very good points and I would add that the problem with most of these IP discussions is that they reek of ex post facto rationalization: the vast majority of internet users have at least occasionally circumvented IP laws simply because they can – it’s free, easy and the chance of getting caught is close to zero.

Wether out of a slight feeling of guilt or simply because they’ve gotten used to the practice and want to continue it, some of these users then go on to make up all sorts of arguments designed to justify this behaviour and that’s when things morph from a minor infraction into a full scale attack on IP law. It’s like people who have occasionally broken the speed limit, cheated a bit on their taxes or not sorted their recycling properly then going on to attack traffic laws, the tax system or environmental policies as a whole.

To them I would say: hey, we’re all sinners, so I wouldn’t worry too much about it, but let’s get real here, it’s wrong and we all know it, so don’t be cheap and fork over the couple of bucks that you are otherwise perfectly willing to pay for a visit to the cinema, the theatre, a musical performance or for a painting, a photograph and, at least in the vast majority of cases, a book.

145

steven 06.13.09 at 12:38 pm

For both you and Tom, an obvious question is whether there is a good example to show that fears about the end of IP are well founded; that is, a field of activity where the ease of copying, and the effective breakdown of many IP restrictions has meant that less, or less good, work is being done? For a more stringent test, is there a field where the result is that that less, or less good, work is available to the typical consumer? If there is no good example now, are there good reasons to think the future will be different?

Those are good questions. I know of no hard evidence in answer to the first two. For the last (might this be a real problem in the future?), well, Tom and I have each offered reasons. Whether they are “good reasons” is a matter of debate, of course. But it is often in other contexts thought sensible to worry about a potential problem before waiting for hard evidence that it is already causing harm.

I think the last paragraph of your original post is absolutely right, btw. The IP debate in many quarters has been unhelpfully skewed by the fact that RIAA et al are so obviously fantastically evil and stupid. It’s understandable why some people would then want to reject not only their specific idiotic arguments (eg, every download = a “lost sale”) but the whole idea of some sort of “IP” “protection”. I worry whether that approach risks throwing the baby out with the bathwater.

146

bianca steele 06.13.09 at 1:53 pm

To clarify, I am not talking so much about applications, word processors etc. (it would be an interesting CS project maybe to investigate what it is about web browsers that makes them better candidates for open source than office applications like word processors and spreadsheets), but about what people in the 1980s were trying to characterize as “software ICs (integrated circuits)”: not because they wanted them commodified in the commercial sense but because they ought to be interchangeable in the sense of being plug-and-play. Nobody writes their own XML/HTML parser, for example–twenty years ago, for the equivalent technology, you would have had to, and moreover in a large organization there might be three or four groups all rolling their own.

147

Tom West 06.13.09 at 2:44 pm

a field of activity where the ease of copying, and the effective breakdown of many IP restrictions has meant that less, or less good, work is being done?

I only have two anecdotal points. One, the Hong Kong movie industry has been crushed as rampant piracy grew, and two, visitors from countries with low IP protection (Russia, China) have maintained there’s essentially no home-grown writers to speak of (in the genres we were talking about). This was pre-internet, but attributed it to the fact that publishers could publish non-Russian authors for free. They don’t qualify as data (and you’re not going to get balanced data in a field where a lot of money is at stake), but I don’t think the logic is entirely ignorable.

I’m probably too old and cynical, but honestly, I think most fields diminish in social importance as the money disappears. Part of this is because to maintain a profile in public consciousness requires marketing, and marketing requires money. Thus a field without money gradually becomes, at best, a subculture with a few devoted fans. Certainly from a social relevance perspective, they become effectively meaningless.

it’s wrong and we all know it

That would be the key phrase. That certainly embodies the ethics of most >25 year old adults now. and if that’s generally accepted, then the cultural industry survives in some form. I’m not nearly so certain that it will in the future. If it doesn’t, I think we’ve seen an end to our current cultural era. What the future brings, who knows?

Personally, I try to keep things in perspective. I’m much more concerned about the technological developments that are no longer making it commercially viable to do research for the public good, namely journalism. *That* is something that’s going to change our lives in a much more radical way much sooner. The next generation can live without books, movies or music – you can always find something else to amuse you (lolcats? Ouch!) . But an unconstrained government is something that you can’t escape.

148

sg 06.13.09 at 3:14 pm

So Novakant, you oppose people lending their friends books?

149

lemuel pitkin 06.13.09 at 6:30 pm

I think most fields diminish in social importance as the money disappears. Part of this is because to maintain a profile in public consciousness requires marketing, and marketing requires money. Thus a field without money gradually becomes, at best, a subculture with a few devoted fans. Certainly from a social relevance perspective, they become effectively meaningless.

This on planet which, now?

I mean Tom, you are posting and reading on a blog here, for which no one is compensated and which is distributed freely. More importantly, almost all of the contributors are academics, none of whom are compensated by IP-type restrictions on the dissemination of their work. Yes, there are barriers to access to scholarly writing, which is unfortunate, but no one pays for an individual article the way we’re expected to pay for a book or a movie or an album. In fact no one pays for scholarly articles at all — the only people who read them, read them for free. And yet people work very hard writing this stuff — even harder than the average novelist, maybe — thanks to a weel developed set of institutional incentives, reputational hierarchies and the intrinsic motivations you scoff at. And I don’t think economics, say, is lacking in social importance as a result.

And hey, you know all this science stuff? that lets you have an internet and teeth into old age and jet planes and the theory of evolution and all that good stuff? None of it was developed as someone’s intellectual property. And yet it’s not entirely lacking social relevance, is it?

150

lemuel pitkin 06.13.09 at 6:34 pm

The next generation can live without books, movies or music

Also, we’ve got plenty of music, old man. Don’t you worry about that.

151

Martin Ranger 06.13.09 at 6:39 pm

I think one should perhaps distinguish the moral side of copyright infringement from the economic side. As novokant said taking something that is not yours and that somebody who made it or paid money for it doesn’t want to give you is wrong.

The argument of non-rivalness does not change that. After all, using this argument, I could use your home computer and TV while you are at work (i’ll pay for the electricity). Most advocates of copyright infringement would probably not be too happy if I did.What is interesting in this context, is that people who make this argument would not extend it to other non-rival goods or services. Say, if a band is playing in a half-empty venue, why would I not have the right to enter for free? Or if, to come back to my first example, if the hairstylist is reading a magazine why could I not force him to cut my hair. They would not be financially worse off.

The only difference between forcing the stylist and copying somebody’s work in that sense is that you take away the stylists utility at that very moment; while when you copy somebody’s work you take away the return on the work/disutility they invested at some prior point. I have a hard time seeing the difference from a moral perspective.

The second (moral) argument, that copying someting I would not have bought is, to me, equally dubious. After all, there are lots of things that I would not have bought, but I still cannot go and just take them. Even if doing so would not “hurt” the person I took it from. Cinemas and concerts that are not sold out come to mind again. One should also not forget the disutility an infringed person gets simply from being infringed. Liken this to me breaking into you house at night and watch you sleep.

Of course moral arguments are subjective, so I do not expect everyone to agree with this.

On the economic side, I think, one is dealing with an extreme form of a natural monopoly. High fixed cost and almost zero marginal cost. Economic theory outlines the consequences: underprovision of the good. The opposite extreme, however, forcing the supplier to provide at marginal cost, that is the equivalent of doing away with copyrights, would lead to the non-provision of the good/service. To me this would suggest that doing away with copyrights etc would lead to the underprovision of certain goods and services. Some producers will probably find ways to survive by using alternative revenue generating mechanisms (concerts, advertising); it is not clear to me, however, in what way this would alter the available product/service mix and the characteristics of the goods/services provided. I think Tom’s concern about journalism is not misplaced in this context.

The theoretical solution to a natural monopoly is forced marginal cost pricing plus a subsidy to cover the fixed cost.

None of this prevents amateurs from giving away their stuff for free.

152

Martin Ranger 06.13.09 at 6:45 pm

Academics, by the way, are very well compensated for their publication. Pre-tenure, without publications they might as well say good-bye to their job. Once they have tenure, their pay rises depend on their publication records. This acts as an incentive.

More generally, academics fit very nicely into the natural monopoly framework. And are compensated as such. Unlike most musicians, writers or photographers

153

steven 06.13.09 at 6:45 pm

In fact no one pays for scholarly articles at all.

And yet somehow, the journal-publishing oligopoly seems to turn a tidy profit. Curious. I’m sure, though, that anti-IP academics boycott all those nasty journals and publish only in open-source, freely-available arenas.

And yet people work very hard writing this stuff—even harder than the average novelist, maybe—thanks to a well developed set of institutional incentives, reputational hierarchies and the intrinsic motivations [Tom] scoff[s] at.

You forgot the university salary. Naturally, salaried academics don’t need to earn money from their writing in order to pay the grocery and mortgage bills. Or perhaps you are suggesting that they would do all this work for the good of society even if their institutions didn’t pay them at all?

154

lemuel pitkin 06.13.09 at 6:46 pm

The only difference between forcing the stylist and copying somebody’s work in that sense is that you take away the stylists utility at that very moment; while when you copy somebody’s work you take away the return on the work/disutility they invested at some prior point. I have a hard time seeing the difference from a moral perspective.

It’s those little words “return on”. But you probably think zoning laws are an unconstitutional taking, too.

To me this would suggest that doing away with copyrights etc would lead to the underprovision of certain goods and services.

Sure, if you assume these is no other way to compensate people for creative work except copyrights, and that there is no other motivation for creative work except financial compensation. That is, if you ignore the conditions under which the vast majority of such work — including by far the most valuable — has actually occurred.

155

Henri Vieuxtemps 06.13.09 at 7:44 pm

Forcing a stylist to do work or using my house when I am away seems considerably different than copying a movie. There is no coercion whatsoever in copying, no intrusion, nothing like that.

When you’re copying content for personal use, you are affecting the content producer in the following way: the content producer may (and y’all are assuming that she necessarily does) wish to maximize her financial gain at the expense of the amount of circulation. Widespread sharing will maximize the amount of circulation – possibly, but not definitely – at the expense of financial gains.

Now, if the content is valuable, circulation and sales/profit probably are positively correlated; so, it’s not obvious that any profit will be lost. If, OTOH, the content is worthless (e.g. well-advertised but very bad movie), then sharing will certainly have a negative effect on the sales/profit (you watch the avi, tell your friends it’s crap). And what’s wrong with that? Seems like a win-win situation, from both moral and economic perspectives.

156

jack lecou 06.13.09 at 8:17 pm

As novokant said taking something that is not yours and that somebody who made it or paid money for it doesn’t want to give you is wrong.

But this is just not true. Not that I can see, anyway.

Say someone paints a mural on the side of their house. They pay a lot of money and put a lot of effort into it.

Then they decide they don’t want anyone to look at it (unless you pay them). Is it wrong to look?

Your intuition that it’s wrong to make copies of something that is floating around in the public sphere is based entirely on the preconception that by making those copies you are “taking” from the original creator somehow – either directly, or by marginally reducing their “return”. But that “taking” only happens under a system where creators in certain mediums have a socially granted “right” to control reproduction in certain ways. And that “right” only exists because of a social bargain, a bargain that is arguably now defunct.

We can talk about consequences and how best to continue to support a vibrant creative sphere as much as you like, but the “natural right” argument falls flat. A musician in Toronto has no more “right” to tell someone in São Paulo what to do with the 1s and 0s on a CD than the owner of a public mural has to tell people whether they’re allowed to look or not.

157

jack lecou 06.13.09 at 8:43 pm

The argument of non-rivalness does not change that. After all, using this argument, I could use your home computer and TV while you are at work (i’ll pay for the electricity). Most advocates of copyright infringement would probably not be too happy if I did.What is interesting in this context, is that people who make this argument would not extend it to other non-rival goods or services. Say, if a band is playing in a half-empty venue, why would I not have the right to enter for free? Or if, to come back to my first example, if the hairstylist is reading a magazine why could I not force him to cut my hair. They would not be financially worse off.

What is different about all three of these examples is that they are excludable. For example, if I don’t want someone in my house using my computer, I can just lock the door. I don’t need to use police -state powers to shut down the whole block. And club owners might very well offer free or reduced price tickets to fill a show – but either way they don’t have to suppress technology for everyone else in order to do it. (A hairstylists time is both rivalrous and excludable, so that’s a particularly absurd example. )

The key problem with easily duplicated creative works is that technology has turned them into genuine public goods, non-rival and non-excludable. It’s becoming just about as practical to charge people for digital copies of your work as it would be to charge people to breathe the air that escapes from the air purifier in your living room.

We need to discuss the consequences of that change, but you can’t just pretend it’s 1972 again. Not with pious (and fallacious) claims to natural rights, not with bogus analogies, and (to novakant) not with accusations that those of us who actually accept this are just making post hoc rationalizations because we supposedly feel guilty about having downloaded some Dr. Who episodes once.

158

Martin Ranger 06.13.09 at 9:15 pm

Jack, the point I was trying to make with your house analogy was a moral one. By me entering you house and watching you sleep or using your computer you are in no way monetarily hurt. Therefore, following your argument I am at liberty to do so. The point of exludability does not matter in this respect.

The analogy of the stylist is arguably not a good one. What I wanted to get at is that the simple fact that someone is not hurt financially may not be good enough of an argument to condone certain types of behaviour. This is also my problem with the “i would not have paid for it anyway” argument. Does this give me the right to pay everyone only what I would have wanted to pay for something, provided it is above the marginal cost of production? In any case how would you distinguish between people who would have and those who would not have paid.

The point of excludability matters with respect to the economic argument. And here I completely agree with you. It is not 1972, in that the cost of copying certain types of work have become almost neglible. This, in my view, does not make it right for me to appropriate this work. But, as I said, the moral aspect of this is debatable, as is any kind of redistribution of surplus.

What has to be examined is the consequences of this. The efficiency argument is not straightforward in this respect. When we are dealing with non-rival, non-excludable goods that are not free to produce, full efficiency cannot be attained. Copyrights, that is creating artificial restrictions use, lead to an underprovision of the good. As does the total absence of any form of copyright protection. About this I can see no argument. What can be argued about is the relative size of the welfare loss in both cases and the mechanism which gets us as closely to the optimum.

This would depend on what type of goods/services we are looking at. My hunch is that if for music the welfare loss was large, a different kind of pricing mechanism would be employed by musicians, but maybe as an economist I am too prone to rely on pricing to achieve (second-best) allocation. To some extent we are seeing this: single song downloads, falling prices for CDs etc. But this is only my hunch. In other cases, such as basic research it is most likely the case that protection is inefficient…which is why much of it is done at universities.

This is not a moral argument but an argument about efficiency. In how far one would want to give up the protection of property rights (which are all more or less due to a social contract) for efficiency is for society to decide.

159

jack lecou 06.13.09 at 9:35 pm

Jack, the point I was trying to make with your house analogy was a moral one. By me entering you house and watching you sleep or using your computer you are in no way monetarily hurt. Therefore, following your argument I am at liberty to do so. The point of exludability does not matter in this respect.

But entering my house and watching me sleep against my wishes would be a violation of my right to privacy, which I think is a genuine right.

It’s that, not simply my wishes or a monetary hurt that elevate it to something morally wrong. For another example, I might experience a lot of disutility from people (who aren’t me) being wrong on the internet. I don’t want them to, maybe I even incur a financial cost because they’re forcing me to spend so much time arguing with them. I’m hurt. That doesn’t give me some kind of right to enforce my preferences on them.

(And ironically, you’re trying to extend an intuitive violation of privacy–watching me sleep–into an argument for violating privacy in other ways: interfering with the private actions of somebody making a digital copy somewhere in the world.)

Now, I think there’s something to the “it’s wrong” argument, but it doesn’t extend anywhere nearly as far as you and novakant want it to. The correct analogy might be to something like a street musician, where listening for a few minutes and then not leaving a few coins is “wrong”. But it’s wrong in the “hey, uncool, dude” sense, not the “stop, thief!” sense. It’s an argument for a social norm toward using internet tip jars, NOT an argument for the moral necessity of copyright restrictions.

160

jack lecou 06.13.09 at 10:23 pm

This is not a moral argument but an argument about efficiency. In how far one would want to give up the protection of property rights (which are all more or less due to a social contract) for efficiency is for society to decide.

I think what I feel is being underplayed here is the fact that we really have no choice in the matter.

The “property right” in question rests on some kind of magic ability to restrict non-commercial copying and file sharing. Even if it were desirable, it’s simply untenable. At least not unless we want to give up all the other good and extraordinarily productive aspects of the internet and associated innovations as well.

Going forward we need to discuss a limited form of copyright that maybe gives creators some short-term control over things like commercial use, and then some other mechanism (probably public) for financing an adequate provision of the various now public goods.

And we also need to keep in mind that not only can’t we go back to 1972, it’s not clear that it necessarily represents some golden age of creative content that must be preserved at all costs. Our great-great grandchildren will likely have a very different idea about what the optimal mix of creative goods is. They might be interested in fewer of the kinds of goods that rely on copyright today (straight-to-DVD movies, Britney Spears CDs), and a lot more of the goods that are not reliant on copyright, or depend on internet technology (funny blog posts, local theater productions, youtube shorts, serialized internet novels…).

161

Martin Ranger 06.14.09 at 12:19 am

But entering my house and watching me sleep against my wishes would be a violation of my right to privacy, which I think is a genuine right.

Why would the right to privacy be a genuine right and propert rights not? And if it were, is my right to privacy not also curtailed by you not letting me watch you sleep?

About enforceablity you are right: copy rights are hard to enforce. But I do not see how this makes them less valid.

Sorry for the short answer. More tomorrow.

162

Righteous Bubba 06.14.09 at 12:29 am

People entering my house and watching me sleep are okay by me. How is it that I know or care about such things? They don’t eat my food and leave my door locked, so they’re the best houseguests I’ve ever never had.

163

jack lecou 06.14.09 at 12:54 am

Why would the right to privacy be a genuine right and propert rights not? And if it were, is my right to privacy not also curtailed by you not letting me watch you sleep?

Property rights in general might be. But we’re talking about a specific type of property, or, really quasi-property. The property in question is a claim on the ability to tell someone halfway across the world in what ways exactly it’s permissible for them to look at a creative work.

Think about the example of the public mural again. Is the right to control the glances of passersby a “right”, or a form of property we want to allow? Or even can allow?

I certainly don’t think so. And digital reproduction has moved several creative mediums over into this category. If you release something into the public realm, you no longer have any practical means to control whether other people share it or not. (Though, again, some more limited forms of control over commercial reproduction may still be workable and desirable.)

Even if you don’t buy that argument, it doesn’t follow that this “property” gives you unrestricted control. You may not want to allow libraries to loan out your work for free, or to allow resale of used copies, or to allow a reviewer to quote or sample sections of your work. All of these things may be things you would like to restrict, and that might even harm you materially quite a bit. But you don’t get to tell those people what they can do with your work. It would be impractical or undesirable if society allowed you to. The “it’s my work and I can tell people whatever I want them to do with it” line falls flat on its face.

If you want to look at this a different way, just think of all this as moving non-commercial copying and sharing into the permissible fair-use category.

164

jack lecou 06.14.09 at 3:09 am

And if it were, is my right to privacy not also curtailed by you not letting me watch you sleep?

I didn’t see this before…

On reflection, I guess I’m not sure it wouldn’t be. Though if it is, it’s not an egregious one: to deny you the right to watch me sleep, I don’t have to do something like have the police put tracking devices on everyone’s ankles, or even hire a detective to follow you around.

Plus, unless you’re a ghost, a ninja or a vampire, there’s a non-zero chance I’ll discover you – that is, there’s an “expected” injury involved regardless of whether you’re actually found out. So it’s also not exactly true this is a harmless act, and even if preventing you is interfering with your privacy somehow, it’s probably worth it on balance.

I think this is also where practicality and difficulty of enforcement come into play: On the one hand we have a desire not to be spied upon in our home while asleep, plus the number of people who want to spy one someone in there sleep is pretty low. On the other hand, if they do, chances are they will leave traces, or give something away and be discovered and punished eventually (so it’s not costly to enforce a restriction).

On top of that, our experience with the sort of people who would WANT to break into someone’s house and watch them sleep suggests they might not always stop there (which is probably one of the reasons finding a stranger in your room would be distressing in the first place). It’s also useful to treat the home as a sort of inviolable bubble in which we have an expectation of privacy and control: As a practical matter, if we started allowing people to enter homes at will as long as they only watched people sleep, it becomes much more difficult to enforce restrictions on more obviously harmful things, like burglary, or rifling through private financial papers. (In contrast, it would not be much of a violation if you were to be watching me sleep on a public park bench, say. Or were digging around in my discarded trash. )

On balance, I think it’s easy to decide as a society that something like breaking into homes and watching people sleep isn’t permissible, and it’s not particularly burdensome to enforce that restriction.

Of course, I also think it might be possible for technology to change that. For example, in some science fiction scenario where brain implants, or mutations, or some trick of concentration allowed anyone to see through anyone else’s eyes at will, or to roam about invisibly and incorporeally. Not particularly realistic, but supposing something like that happened, and the technology was ubiquitous and impractical or undesirable to restrict, then I definitely see how we might need to make some adjustments to our norms about privacy.

165

Henri Vieuxtemps 06.14.09 at 11:26 am

This got weird… If I catch you in my apartment watching me sleep, I’ll beat you up and throw you out; but if I knew that you copied my book, I’d feel gratified.

I published a book once, in the 90s; it went out of print years ago. A few years ago someone emailed me from Mexico asking for my help in getting the book, and I mailed him one of my personal copies. I paid for shipping and didn’t ask him for money. And I am not an altruist by any stretch of imagination. I assume this is a pretty normal pattern of behavior.

166

sg 06.14.09 at 12:49 pm

I’d like to add to Jack Lecou’s point about the IP-protectionists wanting to tell people halfway around the world what they can do with the 1s and 0s on a CD. Not only do they want to do this, but when they do they enact a kind of theft on anyone who bought legitimately any product elsewhere in the world. When I took my laptop to Japan I lost the ability to use it to watch movies; and I can’t buy the soundtrack for Full Metal Alchemist and take it back to Australia, or even play it on an English-language PC. The company has stolen part of my laptop from me, and they have stolen the content I purchased, when they do this.

By introducing zoning protection these companies also restrict my access to cultural goods from other countries, since I can only use those they choose to sell in my zone. I don’t think they have the right to tell me what I can and can’t see, or how I can and can’t use my laptop or DVD player; and they certainly don’t have the right to effectively damage or destroy those objects just because I moved country or wanted to view product from that country. The heavy-handedness of their tactics doesn’t lead me to believe they have any respect for property rights.

We also know that these music companies don’t respect the artists’ property rights either. The band Girlfriend had to beg food and money from their roadies on their first world tour, and finished their career in hoc because of their contract. I don’t have much respect for the property rights of a company that foists a band like Girlfriend on an unsuspecting world and then rips off the band members, all while claiming to be protecting their rights as artists.

167

lemuel pitkin 06.14.09 at 3:17 pm

You forgot the university salary. Naturally, salaried academics don’t need to earn money from their writing in order to pay the grocery and mortgage bills. Or perhaps you are suggesting that they would do all this work for the good of society even if their institutions didn’t pay them at all?

I’m sure many would, but that’s not my point. My point is that there are other ways to compensate people for creative work than through giving them pseudo-property rights in it.

168

lemuel pitkin 06.14.09 at 3:28 pm

I published a book once, in the 90s; it went out of print years ago. A few years ago someone emailed me from Mexico asking for my help in getting the book, and I mailed him one of my personal copies. I paid for shipping and didn’t ask him for money. And I am not an altruist by any stretch of imagination. I assume this is a pretty normal pattern of behavior.

Right, exactly. part of the weirdness of this discussion is the way the pro-IP folks create a binary distinction between doing something for direct monetary gain and doing it out of pure altruism, as if no other motivations were possible.

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated, whether for reasons of ego or personal gratification, for public recognition, to gain status in their reputational community, to improve their professional prospects, etc. It’s a very strange and unrealistic view of the self-interest of someone doing creative work that it is, except in the rarest cases, to restrict access to their work rather than having it as widely disseminated as possible.

169

Tom West 06.14.09 at 5:43 pm

#149, lemuel

I mean Tom, you are posting and reading on a blog here, for which no one is compensated and which is distributed freely.

No offense, but this blog, and in fact almost all blogs, are not socially relevant. They may well be academically relevant, but socially? No.

Let me make it clear, very few cultural items are socially relevant, either. If my wife’s books were never written, the social milieu would not be significantly different. LOLCats might reach social relevance.

If you have half a million or a million people paying attention to you, *then* you’re socially relevant. And I’ll claim that you very rarely (not never) get that sort of relevance without money being a big part of the incentive to spend the months and years of work needed to reach that relevance. Funnily enough, I’ve seen a number of blogs that I thought might approach social relevance get shut down because the owner wasn’t interested in the money, and it was too much damn work to do for free.

More importantly, almost all of the contributors are academics, none of whom are compensated by IP-type restrictions on the dissemination of their work.

Oh please. Surely your not implying we’d be best served by government salaried cultural workers? I’m all in favour of some government support for the arts, but generally for those areas that are *not* socially relevant, but may have some cultural significance.

My point is that there are other ways to compensate people for creative work than through giving them pseudo-property rights in it.

Right. By the way, I’d like you to submit any academic papers to me before you publish them. It will disseminate them a little farther, which is a public good, and if I’m quick, I’ll be able to submit them in my name before you. I’ll gain significant benefit. (I can show my friends I’m a learned academic, not just a computer programmer!) And all you’ve lost is the ability to profit from your IP by getting a publishing credit. It’s not even money!

Sorry, but this smacks of hypocrisy. If we had

And hey, you know all this science stuff? that lets you have an internet and teeth into old age and jet planes and the theory of evolution and all that good stuff? None of it was developed as someone’s intellectual property.

WHAT? Pretty much every technical aspect of the Internet has grown explicitly *because* someone or something was making money of it, from the development of transistors, to the software that controls the network. Sorry, but technology IP is the *last* place you want to use to prove your thesis.

170

Righteous Bubba 06.14.09 at 5:54 pm

When I took my laptop to Japan I lost the ability to use it to watch movies; and I can’t buy the soundtrack for Full Metal Alchemist and take it back to Australia, or even play it on an English-language PC.

Try VLC.

171

sg 06.14.09 at 6:37 pm

I did that Righteous Bubba (didn’t work on FMA as far as I’m aware). I don’t think it worked, because in the end I bought a PS2 and then a Mac. But if it does work, I’m sure the companies are already trying to stop it.

172

Tom West 06.14.09 at 6:42 pm

Sorry, but this smacks of hypocrisy. If we had

Sorry, an overreaction that I unsuccessfully tried to edit out.

But a point still stands. A world where we could snatch IP from your thoughts rather than from your papers might increase the dissemination of ideas, but I doubt it would improve the overall quality of IP in the academic world, especially when they fired all the professors (after all, how can you prove they’re the ones producing the IP?)

Better dissemination does not necessarily mean better social good.

It’s a very strange and unrealistic view of the self-interest of someone doing creative work that it is, except in the rarest cases, to restrict access to their work rather than having it as widely disseminated as possible.

There are two stages in a creative career. Building, in which case you accept a low price point and greater distribution for future reward and the later stage, where if you have been successful in building a base, you might actually want to earn enough to do this full-time, in which case, distribution is not so important as earning a living. The dilettante approach to the arts only goes so far.

173

steven 06.14.09 at 7:14 pm

The idea floating around somewhere upthread that creators who want to get paid — whether through IP, institutional sinecure, patronage or whatever — are ipso facto doing it only for the money, or even mainly motivated by money, is bullshit, as can be proven by the example I am about to make up. If I commission Hans Huhfurr to write a symphony for ten grand, he’ll quit his temporary job on a construction site and write the symphony. If no one commissions him, he’ll have to continue working construction to pay the rent and won’t have the time and energy to write a symphony as soon if ever. If he takes the commission, is he doing it for the money? Of course not.

Unfortunately a lot of people on the other side of the argument seem to hold a demonstrably false and antihistorical concept of how idealistic and unworldly “real” creators are or, in their peculiar view, ought to be.

174

steven 06.14.09 at 7:25 pm

By the way, in case anyone still thinks books are competitive with blogs in terms of social value, it’s a fact that a lot of books only get written because the author, on the basis of a short proposal, has been paid an advance against future royalties, which the author can then use for research/travel/time necessary to write the book. In a brave IP-free future, the publishers obviously wouldn’t pay advances because there would be no royalties from which to recoup them, so those books just wouldn’t be written.

Of course a lot of crappy books get written this way, so the outcome wouldn’t be all bad.

175

Henri Vieuxtemps 06.14.09 at 7:55 pm

In Europe and North America you’re likely to find a more or less decent public library in every little town. I don’t know how much libraries pay to publishers, but I don’t think it’s a lot. How does the book publishing business survive?

176

jack lecou 06.14.09 at 8:09 pm

If you have half a million or a million people paying attention to you, then you’re socially relevant. And I’ll claim that you very rarely (not never) get that sort of relevance without money being a big part of the incentive to spend the months and years of work needed to reach that relevance. Funnily enough, I’ve seen a number of blogs that I thought might approach social relevance get shut down because the owner wasn’t interested in the money, and it was too much damn work to do for free.

I don’t understand how this even matters. So, you’re conceding that there might we be new forms of vibrant creativity going on, but maybe no (single) work or creator will rise to the heights of “social relevance”? This is your catastrophe?

Why should we care about this kind of “social relevance” in the first place?

Right. By the way, I’d like you to submit any academic papers to me before you publish them. It will disseminate them a little farther, which is a public good, and if I’m quick, I’ll be able to submit them in my name before you. I’ll gain significant benefit. (I can show my friends I’m a learned academic, not just a computer programmer!) And all you’ve lost is the ability to profit from your IP by getting a publishing credit. It’s not even money!

This part doesn’t make sense to me at all. Wider distribution and use absolutely is a public good (all else equal, of course), and I think you’ll find a lot of overlap between IP reformers, and people who think the academic publishing system could use some rethinking.

But you seem to be rather ridiculously conflating two very different things here: distributing a work, and taking credit for producing it. The latter we can probably all agree is wrong, and it doesn’t happen anyway. (No one on Piratebay tries to take credit for filming the Battlestar Galactica episode they just uploaded…)

177

jack lecou 06.14.09 at 8:19 pm

Unfortunately a lot of people on the other side of the argument seem to hold a demonstrably false and antihistorical concept of how idealistic and unworldly “real” creators are or, in their peculiar view, ought to be.

Is this directed at my side of the argument? This seems so out of touch with anything anyone has said, it’s kind of hard to tell. (It doesn’t even particularly relevant.)

In any case, it might be nice if you could actually produce some examples of anyone doing this. I think everyone over on this side, anyway, has been quite clear that creators have a complicated and diverse set of motivations and concerns. If anything it is the “pro-IP” side that is being overly reductionist, since a key plank there is apparently the idea that certain kinds of creativity can’t possibly happen without copyright royalties…

178

lemuel pitkin 06.14.09 at 9:59 pm

If I commission Hans Huhfurr to write a symphony for ten grand, he’ll quit his temporary job on a construction site and write the symphony. If no one commissions him, he’ll have to continue working construction to pay the rent and won’t have the time and energy to write a symphony as soon if ever.

Right, this is precisely the problem we all want to solve. Let’s agree that for Hans Huhfurr to write the symphony, two things need to be true: (1) he needs to be able to enjoy a reasonable standard of living without spending too much time on non-symphony-writing work, and (2) he needs some external incentive or reward for writing the symphony. IP is one system for satisfying these conditions, but it’s not the only one. (In fact, it’s not clear if your example even involves IP, since you didn’t say who, if anyone, would hold the copyright to the symphony once it’s done.) Nor do both conditions need to be satisfied the same way.

For a long time, government granted monopolies on distribution (IP) were a reasonable way to achieve these goals. They were never without problems, and they were never the sole way of sustaining and rewarding creators, but they worked OK for many purposes. Now technology has changed that. Copyrights and similar forms of pseudo property have become much less effective at providing income and recognition to creators, and attempting to enforce them is much more socially costly.

So the challenge is to find better ways to support and encourage the Huhrfurrs of the world. The right norms already exist, I think; people *do* recognize the moral rights of creators, as our strong taboo against plagiarism makes clear. The challenge is creating the right institutions.

But — and this was the original point of the post — insisting that strong IP in its current form is the only possible way to provide incomes and incentives to creators only makes that task harder. Saying “IP or nothing” just makes it more likely that creators will end up with nothing, given that strong IP is less and less viable, technologically or socially. It’s perfectly understandable that a company like Disney would want to convince us that a world where they can’t make (as much) money off creative work is equivalent to a world with no creative work at all. But there’s no reason the rest of us should look at it that way.

179

novakant 06.14.09 at 10:17 pm

The glory years of large TV series or miniseries were over by 1990. (…) the internet, the IP wars and the horrible effects of online advertising were just the particular accidents that pushed a decadent bunch of forms into the ditch.

The Wire
The Shield
The Sopranos
Six Feet Under
State of Play
Mad Men
West Wing
Spooks
Carnivale
Life on Mars
The Office
Band of Brothers
Angels in America

Seems to me the past decade has been rather interesting as far as TV series were concerned.

And as for film, there have always been studios trying to play it safe, blockbusters and star vehicles, but certainly not all of this is bad and apart form that, there is so much interesting art-house and indie stuff out there, that even I, who watches about five films a week, have a hard time keeping up.

180

John Quiggin 06.14.09 at 10:20 pm

“WHAT? Pretty much every technical aspect of the Internet has grown explicitly because someone or something was making money of it, from the development of transistors, to the software that controls the network. Sorry, but technology IP is the last place you want to use to prove your thesis”

This is much more wrong than right. The computer itself, the Internet and the WorldWideWeb were all developed by publicly funded researchers. Even Bell Labs which produced the transistor, was a quasi-public outfit, able to pursue public good research thanks to the AT&T monopoly – now that’s gone, so are the Labs. And coming to Web 2.0, blogs, wikis and many other innovations owe nothing to IP, while the IP-driven innovations of the dotcom boom mostly came to nothing.

181

steven 06.14.09 at 10:22 pm

IP is one system for satisfying these conditions, but it’s not the only one. (In fact, it’s not clear if your example even involves IP, since you didn’t say who, if anyone, would hold the copyright to the symphony once it’s done.)

Oh, I agree. Indeed, my example wasn’t meant to be an example of IP but one of patronage. It was merely directed at those who think that artists always can and will make creative work without regard to financial considerations. (I wonder in passing if it’s possible to think of IP as in some ways a form of democratic, distributed patronage, and if putting this spin on it would make any difference.)

But—and this was the original point of the post—insisting that strong IP in its current form is the only possible way to provide incomes and incentives to creators only makes that task harder. Saying “IP or nothing” just makes it more likely that creators will end up with nothing, given that strong IP is less and less viable, technologically or socially.

Sure — as per #145 I agree that the RIAA hardline is just stupid and counterproductive. On the other hand, it’s clear that we haven’t arrived at a complete breakdown of IP yet, since Microsoft/Ubisoft/Eminem/JK Rowling are obviously still all making shitloads of money out of it despite rampant “piracy”. So the argument from impossibility (no way to charge for bits any more) just fails on the facts right now.

It’s perfectly understandable that a company like Disney would want to convince us that a world where they can’t make (as much) money off creative work is equivalent to a world with no creative work at all. But there’s no reason the rest of us should look at it that way.

Indeed, one of the big problems with IP-as-it-stands is that so much of the revenues go into the pockets of Disney/RIAA execs rather than to the creators. But it seems to me at least possible that IP could be reformed rather than abandoned — if, as John Q suggests at the end of his original post, more moderate pro-IP voices can make themselves heard.

182

jack lecou 06.14.09 at 10:52 pm

By the way, in case anyone still thinks books are competitive with blogs in terms of social value, it’s a fact that a lot of books only get written because the author, on the basis of a short proposal, has been paid an advance against future royalties, which the author can then use for research/travel/time necessary to write the book. In a brave IP-free future, the publishers obviously wouldn’t pay advances because there would be no royalties from which to recoup them, so those books just wouldn’t be written.

I don’t see how this has any bearing on whether books are ultimately competitive with blogs in terms of social value. That aside, this entire paragraph rests on the phrase “there would be no royalties from which to recoup them.”

You seem to be ignoring the variety of mechanisms which have been proposed, not only here but also on the thread you linked to at your blog, for providing monetary support and reward to authors. And wherever there is a stream of money, I see no reason why there couldn’t be entrepreneurs willing to offer an advance in speculation of your success and the future cash stream.

183

jack lecou 06.14.09 at 10:54 pm

Indeed, my example wasn’t meant to be an example of IP but one of patronage. It was merely directed at those who think that artists always can and will make creative work without regard to financial considerations.

Not to be thorny, but you’ve yet to point out who those people are. This accusation seems to be a strawman of your own creation. At best, it’s a very bad misreading of what others have been saying here.

184

novakant 06.15.09 at 10:57 am

This accusation seems to be a strawman of your own creation.

Steven can speak for himself, but there is an underlying assumption among the “everything should be free” crowd that creative content is just there for the taking and that it will by some magic always be produced, no matter how the economic incentives are distributed. And they tend to go on to say that it is up to the consumer to decide what incentive structure is the correct one and how artists should be reimbursed (“bands should make their money from live concerts”, “I’ll only pay for a DVD if it contains a ton of unique extras, we want added value”, “I’ll check out everything for free first and will only pay for it if I really, really like it, happen to have the money, feel like it”). Some commentators above have embraced this concept, others are arguing for a weaker, but similar form, namely that we should assure artists a basic income, but in turn deprive them to varying extents of the right to exploit their works financially.

While subsidizing artists is a good thing in general, it also has its fair share of problems: the process of deciding who is worthy of such support and who is not, is intrinsically arbitrary and open to all sorts of political manipulation. The concept of the salaried “culture worker” employed by the state clashes with the freedom of the arts. And while the capitalist media industry certainly does not guarantee that those who deserve it will also make it big, it tends to be pretty good at sorting the wheat from the chaff and there are plenty of people working there who love the arts and are willing to cross-subsidize projects that might not be financially rewarding.

I think that it is both presumptuous and counter-productive to tell artists that they should forgo the right to exploit their work financially in favour of some utopian economic model that whose chances of actually being realized are close to zero.

185

novakant 06.15.09 at 12:45 pm

I take your point that HBO television in the US is relatively robust, though its funding base is in trouble with the GEC. But it is not so healthy in many other places, and is now hugely dependent on large pudding co-productions. In feature films, the indys are in trouble at the moment and mainstream cinema is dominated by bloated juvenile fantasies.

HBO is dominant in quality TV production, but I’ve listed quite a few outstanding series by other producers. And the reason why HBO is so good, is that they have a loyal following who are willing to pay for good content, either by subscription or by buying the DVDs.

As for mainstream features, the juvenile fantasies might appear to be dominant because of the massive budget, marketing and returns, but <a href="http://www.the-numbers.com/the numbers tell a more complex story (e.g. “Gran Torino” cost $35 million and returned $260 worldwide, “The Reader” cost the same and returned $80, “Milk” cost $20 and returned $50 and so on – they equaled or outperformed “Star Trek” and “Wolverine” in terms of ROI). And yes, indies and art-house films are having trouble finding financing in a recession, because independent investors are less likely to take risks, but for instance in France they are quite healthy, both because the public goes to the theatres in droves and because many have financial backing from Canal+.

This all goes to say that loyal customers paying for content are the way to ensure a healthy creative industry and not the other way around.

186

novakant 06.15.09 at 12:49 pm

oops, that I’ll post that second para again:

As for mainstream features, the juvenile fantasies might appear to be dominant because of the massive budget, marketing and returns, but the numbers tell a more complex story (e.g. “Gran Torino” cost $35 million and returned $260 worldwide, “The Reader” cost the same and returned $80, “Milk” cost $20 and returned $50 and so on – they equaled or outperformed “Star Trek” and “Wolverine” in terms of ROI). And yes, indies and art-house films are having trouble finding financing in a recession, because independent investors are less likely to take risks, but for instance in France they are quite healthy, both because the public goes to the theatres in droves and because many have financial backing from Canal+.

187

jack lecou 06.15.09 at 1:41 pm

Steven can speak for himself, but there is an underlying assumption among the “everything should be free” crowd that creative content is just there for the taking and that it will by some magic always be produced, no matter how the economic incentives are distributed.

Well, this is what I’m talking about. Strawmen all the way down. First of all, I doubt the “everything should free” crowd is very well represented on Crookedtimber.

Number two, I would have thought it was absolutely incontestable that some creative work will always be produced, no matter the disposition of copyright law. (And copyright is what we’re talking about here–try not to get sloppy with the word ‘incentives’. )

After all, copyright only really comes into play, at least as a vital means of compensation, in a few specific classes of creative work: photos, books, recorded music, recorded movies, software. There are a lot of classes of work where lack of copyright wouldn’t affect much: sculpture, painting, live performances of all kinds–dance, plays, music, acrobats, even live television programming. And then in many cases, copyright is likely not necessary for even certain kinds of work in the first class, or at least only a weak form of copyright is needed: newspapers and magazines, movie screenings, tv programming with embedded ads, academic papers, (free) software, etc. And that’s just the more traditional media–I don’t think twitters or youtube videos need a lot of protection either.

So, yeah. I think there could indeed be a lot of creativity going on without copyright. It obviously doesn’t mean I think all traditional industries would continue on unchanged, or that with no intervention we’d necessarily be getting an optimal quantity of output, but there are a lot of mediums which could continue on in some form or another, and new mediums that could be invented. Stop mistaking “less output” and/or “different avenues of output” for “no incentives, no creativity”.

Some commentators above have embraced this concept, others are arguing for a weaker, but similar form, namely that we should assure artists a basic income, but in turn deprive them to varying extents of the right to exploit their works financially.

There’s that heavy framing again, and I’m not buying. Nobody’s managed to establish here that producing a work of art entitles an artist to a government enforced monopoly. Particularly not an unrestricted one. If you think it does, please explain what’s wrong with my example of a mural paintings creator demanding payment from passersby (not asking for tips, mind, demanding, with police enforcement). Or explain why we allow libraries and resale of copyrighted works, even when the creator doesn’t want it to happen. (If you like, consider how internet sharing could be modeled as essentially equivalent to a library – just a very convenient and efficient one.) Or explain why it’s a terrible violation of the rights of engineers and building contractors when they’re not (any longer) compensated with a perpetual monopoly on river crossings when they build a bridge.

Yeah, we want to provide creators with the resources they need to make art and culture for us. Preferably something above starvation level, and even to get rich if they can. But entitled to a particular form of government monopoly? Not so much.

(P.S.: When we’re talking about alternative forms of government compensation, using the term “salaried cultural worker” isn’t really any more applicable in those cases then it is to the current form of government compensation by copyright. Another straw man.)

188

lemuel pitkin 06.15.09 at 3:40 pm

there is an underlying assumption among the “everything should be free” crowd that creative content is just there for the taking and that it will by some magic always be produced

An example, please?

189

steven 06.15.09 at 4:10 pm

There’s that heavy framing again […] Nobody’s managed to establish here that producing a work of art entitles an artist to a government enforced monopoly.

I am not an economist, so perhaps someone could explain what sense it makes to say that I, as the copyright holder in a book, thereby have a “monopoly”. A monopoly on what? First sales of the book I wrote? In that case, the books market is made up of millions of monopolies, right? And every single company in the world has a monopoly on every single product that it sells, since it’s the only company that sells that exact product, right? On which usage I can’t see that “monopoly” has any real meaning at all.

190

bianca steele 06.15.09 at 4:44 pm

This discussion is utterly depressing. On the one hand you have industry lawyers arguing, with no pushback that I’ve ever seen except from absolute extremists, that ordinary citizens should not be able to back up their DVDs, copy old VHS to DVD, or use the DVD equivalent of Super-8 technology (and then whining when people bypass physical media altogether in favor of peer-to-peer networking). On the other hand, you have Lawrence Lessig evidently taking seriously an argument that Web 2.0 “is socialism” (see link above), and good luck trying to get a definition of Web 2.0 if you doubt the basis of the entire discussion. And here we have people questioning the very morality of IP as a concept (as if the point were to establish one’s personal morality), or alternately showing off how they have argumentative skills their interlocutors don’t.

191

bianca steele 06.15.09 at 4:44 pm

Argh, I quoted from L. Lessig’s blog and used a bad word.

192

bianca steele 06.15.09 at 4:59 pm

Corrected, please delete previous comment:
This discussion is utterly depressing. On the one hand you have industry lawyers arguing, with no pushback that I’ve ever seen except from absolute extremists, that ordinary citizens should not be able to back up their DVDs, copy old VHS to DVD, or use the DVD equivalent of Super-8 technology (and then whining when people bypass physical media altogether in favor of peer-to-peer networking). On the other hand, you have Lawrence Lessig evidently taking seriously an argument that Web 2.0 “is s——–” (see link above), and good luck trying to get a definition of Web 2.0 if you doubt the basis of the entire discussion. And here we have people questioning the very morality of IP as a concept (as if the point were to establish one’s personal morality), or alternately showing off how they have argumentative skills their interlocutors don’t.

193

jack lecou 06.15.09 at 5:09 pm

I am not an economist, so perhaps someone could explain what sense it makes to say that I, as the copyright holder in a book, thereby have a “monopoly”. A monopoly on what? First sales of the book I wrote? In that case, the books market is made up of millions of monopolies, right? And every single company in the world has a monopoly on every single product that it sells, since it’s the only company that sells that exact product, right? On which usage I can’t see that “monopoly” has any real meaning at all.

It’s right there in the name: copyright. It’s a government granted exclusive printing/copying right on a particular work. And yes, the books market is an arena of monopolistic competition, made up of many such monopolies. (Likewise, trademark creates monopolies on, for example, Crest toothpaste. And patents create monopolies on Viagra, or anti-gravity flying cars.)

That’s certainly a very real monopoly. If it weren’t, I doubt we’d be having such a heated debate about changing the terms under which it’s granted…

194

lemuel pitkin 06.15.09 at 5:11 pm

Bianca, is there some point where you actually disagree with John Q., Jack Lecou, or I?

195

Righteous Bubba 06.15.09 at 5:16 pm

This discussion is utterly depressing.

Then lets fill it full of kooky ideas! How about an earnings cap on copyright? Let’s say I write “Touch My Bum” and make a million dollars – that’s the cap and that song then falls into the public domain: I’ve won my lottery due to my spectacular creativity and the public as a whole can share in my genius. Adjustment necessary for various enterprises, blah blah.

196

Henri Vieuxtemps 06.15.09 at 5:39 pm

Ah, the kooky ideas. Here: books will be written in the same manner opensource software is, or wikipedia: as a collaborative project of thousands of people. Each book will branch out in a dozen different directions; good ones into hundreds. No one will want to read (let alone to buy) a book written by a single individual, it’ll sound ridiculous.

197

Righteous Bubba 06.15.09 at 5:46 pm

All creative work will be discovered posthumously because all authors begrudge a free lunch.

198

lemuel pitkin 06.15.09 at 6:20 pm

TV shows will be produced by government bureaucracies. And yet, they will not suck.

199

jack lecou 06.15.09 at 6:27 pm

2061: creating an individual creative work oneself is considered passé.

Instead, artists work to build and refine the hardware of fantastically complex meta-creator-bots, capable of themselves producing endless variations on a theme, anything from paintings to feature length movies. Cash prizes are awarded in highly competitive international events.

Some past winners which remain particularly popular: Lolcat-bot, Bollywood-bot, Buddy-Cop-Comedy-bot, Nietzsche-bot and, last year’s winner, meta-meta-bot.

200

jack lecou 06.15.09 at 6:37 pm

I should add that these competitions have been denounced by both the Pope (on the grounds that building robots with creativity infringes on the domain of God and the human soul), and by the Robot Pope (on the grounds that forcing innocent robots to produce an endless stream of buddy-cop movies or country music is a violation of their right to self determination–and good taste).

201

bianca steele 06.15.09 at 6:43 pm

Lemuel, how come I have to say whether I agree with the three of you if you don’t have to say whether you agree with one another?

202

Kevin Donoghue 06.15.09 at 7:10 pm

Steven @ 192: I am not an economist, so perhaps someone could explain what sense it makes to say that I, as the copyright holder in a book, thereby have a “monopoly”.

It’s called monopolistic competition. Since I don’t know much about it I’ll leave you to Google. I do know that the literature is vast and while it may not answer your questions it certainly discusses them at great length.

203

Kevin Donoghue 06.15.09 at 7:17 pm

Sorry, if I’d read more carefully I would have seen an answer had already been supplied.

204

lemuel pitkin 06.15.09 at 7:21 pm

Well, Bianca, you did say that the IP-skeptics here (I just named the most active three) haven’t made any substantive arguments but are just showing off our argumentative skills. Whereas it seems to me that in fact, a lot of very concrete arguments have been made about the basis and social usefulness of IP and alternatives to it. If the discussion is all so utterly depressing, I’d think you could find something actually said here to criticize, instead of something Lawrence Lessig apparently said once.

205

jack lecou 06.15.09 at 7:42 pm

(Despite the apparent watershed nature of its creations, Meta-Meta-bot was actually something of a dark horse in last year’s semifinals. The front runner was universally considered to be the Jamaican team, and their magnificent clockwork difference engine: three stories tall, built out of minuscule springs, brass gears, and watch jewels; capable of producing fine renderings in the impressionist style.

Unfortunately, two events sealed their fate. The first occurred when the Russian judge refused to award the machine full points in the ‘style’ category, saying, “What? What is big deal? Is just big pile of noisy old gears.” The second when, in the final round, with the machine’s dials set for Degas, a small leaf spring deep within its bowels broke, producing in the end what was clearly a Pissarro.)

206

bianca steele 06.15.09 at 8:40 pm

Well, maybe we’ll just have to agree to disagree. But for an example, you say:

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated

By “real creators” I assume you mean handbag designers. Unless you believe painters would rather everyone had a copy of their painting in their living room but nobody knew who they were and they were widely known as the worst crap painter ever.

207

jack lecou 06.15.09 at 9:10 pm

By “real creators” I assume you mean handbag designers. Unless you believe painters would rather everyone had a copy of their painting in their living room but nobody knew who they were and they were widely known as the worst crap painter ever.

I’ll let lemuel explain his comment himself, but I’m having difficulty understanding the part you wrote here about “nobody knew who they were”.

If the intimation here is that a popular and widely downloaded work will also tend to be somehow anonymous (or plagiarized), that’s simply false. Quite the opposite, in fact.

When someone downloads a picture, or some music they know who made it. It wouldn’t really work any other way. (I want music by Neutral Milk Hotel, for example, not any old music posted by “1337steve452”, so, broken metadata aside, the provenance and authorship of works is usually pretty clearly advertised. Even on the pirate networks.)

208

lemuel pitkin 06.15.09 at 9:10 pm

Bianca, in almost every comment I’ve made here I’ve stressed the need for some form of public recognition for people doing creative work. I specifically cited norms against plagiarism as an important part of the post-IP system of supporting creative work. So no, I don’t believe that. Obviously.

Or look at Jack L.’s 177. Nobody here has said that creators shouldn’t have their work publicly acknowledged. The issue is the desirability of giving them a legal monopoly on its distribution.

209

steven 06.15.09 at 9:49 pm

monopolistic competition

Thanks!

210

steven 06.15.09 at 9:54 pm

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated

Perhaps this could be tested by means of a poll. Let’s ask a sample of, say, writers: “Would you rather have your work distributed to 0.01% of the population and thereby earn a guaranteed $500k, or would you like it distributed to the whole world along with the address of an internet tip jar?”

211

Righteous Bubba 06.15.09 at 9:56 pm

guaranteed $500k

Sweet deal.

212

steven 06.15.09 at 9:57 pm

Yes, perhaps the first option should be 0.001% of the population and $50k.

213

jack lecou 06.15.09 at 10:04 pm

Yes, perhaps the first option should be 0.001% of the population and $50k.

I’d be interested in the results myself, though I think you’re still presenting something of a false dilemma. We’ve talked about lots of ways authors might be able to get an acceptable amount of cash AND a shot at universal popularity.

214

lemuel pitkin 06.15.09 at 10:06 pm

Steven, are you trying to make an argument of some kind?

215

steven 06.15.09 at 10:09 pm

We’ve talked about lots of ways authors might be able to get an acceptable amount of cash AND a shot at universal popularity.

You can surely understand the potential resistance among creators to discarding a regime under which they can and do get paid in favour of some vague made-up ones in which they might get paid?

216

lemuel pitkin 06.15.09 at 10:09 pm

Actually, the hypothetical bet proves my point quite nicely. If creators’ general interest was in restricting access to their work, rather than disseminating it, it would be the option of universal access you would have to pay them for.

When you say, “I could pay someone to forego X”, you are assuming they have an interest in X. So Steven is agreeing with the sentence of mine that he quoted, even if he doesn’t realize it.

217

steven 06.15.09 at 10:12 pm

Steven, are you trying to make an argument of some kind?

Not really; I only bother to make arguments if the government promises to grant me a monopoly on them.

218

novakant 06.15.09 at 10:15 pm

copyright only really comes into play, at least as a vital means of compensation, in a few specific classes of creative work: photos, books, recorded music, recorded movies, software. There are a lot of classes of work where lack of copyright wouldn’t affect much
(…) .

I think there could indeed be a lot of creativity going on without copyright. It obviously doesn’t mean I think all traditional industries would continue on unchanged, or that with no intervention we’d necessarily be getting an optimal quantity of output, but there are a lot of mediums which could continue on in some form or another, and new mediums that could be invented.

Please, please explain a.) why in the world the time-tested media of literature and film should change just because someone found a way to circumvent copyright and b.) exactly how literature and film are supposed to change as media to accommodate your demands. Are writers supposed to read their novels in public for a fee, are filmmakers supposed to stop “recording” movies and put them on stage instead as a live event? How is this supposed to work? Or are you just not all that interested in the continued existence of these art forms and willing to let them die a slow death so that your demands can be satisfied?

219

Righteous Bubba 06.15.09 at 10:18 pm

Please, please explain a.) why in the world the time-tested media of literature and film should change just because someone found a way to circumvent copyright

Er, because a.), in a purely practical sense.

220

jack lecou 06.15.09 at 11:21 pm

You can surely understand the potential resistance among creators to discarding a regime under which they can and do get paid in favour of some vague made-up ones in which they might get paid?

With the caveat that I don’t think the mechanisms being proposed are quite as ephemeral as you’re making them out to be, and that I would certainly not emphasize the word ‘might’ in the sentence of mine that you quoted, then I can understand that, yes.

But while I’m sympathetic to that kind of fear of the unknown, it doesn’t actually mean that we as a society are better off preserving the current system at all costs. (Or even that authors themselves are better off under the current system–uncertain futures can also hold nice surprises.)

221

jack lecou 06.15.09 at 11:59 pm

Please, please explain a.) why in the world the time-tested media of literature and film should change just because someone found a way to circumvent copyright and b.) exactly how literature and film are supposed to change as media to accommodate your demands. Are writers supposed to read their novels in public for a fee, are filmmakers supposed to stop “recording” movies and put them on stage instead as a live event? How is this supposed to work? Or are you just not all that interested in the continued existence of these art forms and willing to let them die a slow death so that your demands can be satisfied?

Righteous Bubba has again answered more concisely than I’ll ever manage.

(In case you miss the subtext of his reply, this has absolutely nothing to do with any “demands” I am making. It’s not about ego, just reality. Things change, and sometimes they’re bigger than us. Until you get that, you’re pretty much just talking to yourself and a roomful of straw here.)

However, I am going to point out what I think is something of a failure of imagination and perspective here. You talk about the “time-tested media of literature and film”, but that word “time-tested” is doing an awful lot of work for you.

I mean, time-tested? Film is only maybe 130 years old, max. And the time since the advent of the VHS and “movies on the small screen” isn’t even a quarter of that. What makes you think it’s a lasting medium? Why shouldn’t film just be a blip, in the scheme of things lasting barely longer than the kinetoscope?

I mean, to be clear, I think something film will probably continue to thrive, in one form or another, with one business model or another, for quite some time. But maybe not. Either way, I don’t feel tempted to pull the emergency brake on our collective cultural evolution just so I can preserve film in whatever I self-absorbedly designate to be it’s one, true, “time-tested” form.

And much the same thing can be said for literature. I mean, copyright did not exist until the Statute of Anne in 1710.

If, on the one hand, you define literature as certain kinds of works that have been created since that date (the ones that could only exist with a system of copyright protection–which isn’t all of them by any means), then it’s also pretty young medium. In the long view, there’s no particular reason we should need to mourn it any more than any other passing literary fad.

On the other hand, if you mean a “literature” that encompasses epic poems, oral histories, and Homer, Chaucer and Shakespeare, then the medium obviously predates copyright by several thousand years–and I think it can probably survive the internet.

222

bianca steele 06.16.09 at 12:14 am

Jack@210: Creators whose goal is wide distribution of their work are likely to be satisfied with a setup that provides them fewer other things. Creators with other goals may be less content with such a setup. And not only creators.

Lemuel@211: You and Jack obviously have your own point(s) of view and if you’d like to articulate them, go ahead. I haven’t seen a reason that would cause me to want to help you articulate them. (You want an enforceable right to be cited in footnotes, whenever the ideas in a derived work are dependent on your own ideas, but no other property rights in a text? Do I have this right?)

I think the discussion has been seesawing all over the place without anyone acknowledging it. It could create the appearance of a consensus that isn’t really real. Or, for example, a lack of consensus about where a reasonable middle ground might be, between the position the film and music industries’ lawyers are pretty much obliged to take, and the Fourierist position. The argument appears to be that the left side of the argument will win because technology makes it impossible to enforce the wishes of the supporters of the righthand side.

This is so obvious that it seems certain I’m not understanding something about your point of view(s).

223

steven 06.16.09 at 12:19 am

But while I’m sympathetic to that kind of fear of the unknown

Ah, I see, it is creators who are the whimpering scaredy-cats, and you the courageous one for putting their balls on the line for them, is that right?

It doesn’t actually mean that we as a society are better off preserving the current system at all costs.

Not many things are worth preserving at all costs. I don’t know of anyone who has suggested preserving IP-as-it-stands at all costs, either. Not even the RIAA has suggested that the status quo must remain as is even if it means, say, slaughtering a million ponies.

(Or even that authors themselves are better off under the current system

They are certainly better off under a system under which they do actually get paid now than under a notional underdefined “system” which doesn’t yet exist but under which they sorta could perhaps get paid according to some folks’ opinions.

(uncertain futures can also hold nice surprises.)

Sure, Hans Huhfurrh could win the lottery and devote his life to composing!

224

jack lecou 06.16.09 at 12:30 am

Jack@210: Creators whose goal is wide distribution of their work are likely to be satisfied with a setup that provides them fewer other things. Creators with other goals may be less content with such a setup. And not only creators.

In that comment I was only asking for clarification to what I read as the conflation of copying with plagiarism. They’re not the same by any means, nor do they go hand-in-hand. And unlike free distribution, plagiarism has no social upside.

Beyond that, yeah, it’s obvious that some creators’ goals might line up with wide distribution, while others would prefer to have more control. Equally obviously, we shouldn’t axiomatically prefer the latter group’s goals to the former’s…

225

jack lecou 06.16.09 at 12:31 am

(You want an enforceable right to be cited in footnotes, whenever the ideas in a derived work are dependent on your own ideas, but no other property rights in a text? Do I have this right?)

Huh?

226

bianca steele 06.16.09 at 1:03 am

Jack@227: unlike free distribution, plagiarism has no social upside

What kind of plagiarism are you talking about? Nonfiction or fiction? Academic or popular? What’s the difference between freely distributing the Encyclopedia Britannica and publishing a book that’s plagiarized from it?

Do you think Shakespeare has no social upside? Shakespeare plagiarized Boccaccio, popularizing him for the English masses so they could be entertained without learning Italian. He did the same with some Tudor historians.

228: Lemuel, I think, had envisioned a world in which intellectual property rights were not recognized, but a responsibility not to plagiarize was. Isn’t that like saying, “there are no property rights in land, but trespassing is forbidden”?

227

Righteous Bubba 06.16.09 at 1:06 am

Shakespeare plagiarized Boccaccio

No he did not.

228

jack lecou 06.16.09 at 2:30 am

What kind of plagiarism are you talking about? Nonfiction or fiction? Academic or popular?

In context I’d say we’re mostly interested in film, tv, music, and popular books, both fiction and non-fiction.

What’s the difference between freely distributing the Encyclopedia Britannica and publishing a book that’s plagiarized from it?

Depends. I imagine the Britannica’s sales department, a consumer looking for an encyclopedia, a rogue (print?) publisher, and someone uploading it to Piratebay would all have different ideas about what the key distinctions are. If it’s important, I can go into them.

I think things would also change if the Britannica were a single author work, and depending on the disposition of copyright laws.

Do you think Shakespeare has no social upside? Shakespeare plagiarized Boccaccio, popularizing him for the English masses so they could be entertained without learning Italian. He did the same with some Tudor historians.

Bubba and wikipedia seem to disagree with you, but regardless. If it occurred, it obviously wasn’t pure plagiarism. At minimum, it’s translation (maybe some “jazzing up” too). Even current copyright considers a translation to be an original expression worthy of a separate copyright. (Although it’s a derived work, so publishing would have to be negotiated with the original rights holder–not a problem here, since Boccaccio died 189 years before Shakespeare was born.) Not cool to not offer some acknowledgement, if it was due, though.

(The Tudor historians probably don’t even rise to that level – unless they were writing dramatic histories that included lots of dialogue. History isn’t copyrightable and there isn’t traditionally any particular onus on a fiction writer to say where he got his facts from.)

229

jack lecou 06.16.09 at 2:36 am

228: Lemuel, I think, had envisioned a world in which intellectual property rights were not recognized, but a responsibility not to plagiarize was. Isn’t that like saying, “there are no property rights in land, but trespassing is forbidden”?

I think it’s probably the other way around: property rights still exist, but trespassing is permitted. Either way, isn’t it pretty easy to see how you could relax restrictions on copyright, without relaxing restrictions on plagiarism?

Academic writing is probably 95% of the way there already. It’s not very wrong at all to pass around a PDF of a paper, but it’s VERY wrong even to paraphrase a little of it in your own work without attribution (never mind editing out the author’s name and resubmitting the whole thing as your own).

As for why that makes sense, it’s all about incentives and social benefit, and I think a taboo on plagiarism is easy to defend. Like copyright, it’s about incentives to create: you mess with copyright, you mess with the financial side; you mess with attribution and you mess with the reputational side. But unlike copyright, there’s no obvious replacement for the reputational side, and you don’t gain anything by ditching plagiarism taboos in any case.

Consumers can still enjoy all the copies they want, so there’s no additional social benefit created. You have to give attribution when you share something, of course, but everyone tends to want to do that anyway, because reputations are important for consumers and would-be-sharers as well as creators. (Attribution also tends to be built into a lot of the work that people are interested in sharing. The movie Transformers can only come from one place.)

230

jack lecou 06.16.09 at 2:59 am

The argument appears to be that the left side of the argument will win because technology makes it impossible to enforce the wishes of the supporters of the righthand side.

This is so obvious that it seems certain I’m not understanding something about your point of view(s).

Well, I’d say that the reason it’s worth debating is that it’s NOT necessarily inevitable. If we put enough resources into it, and sacrificed enough, we obviously could stop internet copying.

The fundamental point is more that it’s now very costly to maintain, especially in terms of opportunity costs: you crack down, you not only get much lower social utility as fewer people are able to use creative works, but in the process you probably also quash all kinds of new creative works that we haven’t even thought of yet.

In addition to that basic point, it’s just not true that copyright was a perfect system, or that it will be terribly difficult to replace the kind of financial incentive for authors that “retail copyright” provided. It’s key advantages were always more that it was cheap to administer, and that the monopoly rents didn’t suck too much back when the biggest part of the cost of a book was still paper, glue and ink anyway.

231

jack lecou 06.16.09 at 3:10 am

They are certainly better off under a system under which they do actually get paid now than under a notional underdefined “system” which doesn’t yet exist but under which they sorta could perhaps get paid according to some folks’ opinions.

As I just said, it’s not as if copyright was ever all that great. Most of the cost of books went into printing, and the rest into the publisher’s pockets. Authors/creators never got much of that. Royalties are what, maybe 5-12%? Do the numbers.

Let’s say you’re getting 10% of a $10 book that sells a 20,000 copies. You’ve got $20,000.

Now put it on the internet, where 100,000 people want it, and you don’t have to cut in a publisher or a printer. All we’ve got to do is figure out how to average about $0.20 from each of them and you’re status quo. Get that up to a whole two bits each and you’re well into the land of pleasant surprises.

This is the task that you find unfathomably, incomprehensibly, dangerously difficult? There’s no possible way authors will ever find a way to be compensated in a system where printing and distribution costs are nonexistent, and the audience is the entire world? Really?

232

John Quiggin 06.16.09 at 3:16 am

Not even the RIAA has suggested that the status quo must remain as is even if it means, say, slaughtering a million ponies.

Surely ‘puppies’ are canonical here.

For ‘ponies’, how about:

The RIAA would be better off wishing for a million ponies than trying to stop a hundred million teenage downloaders.

233

Righteous Bubba 06.16.09 at 4:43 am

Universal, Virgin Media Enter Unlimited Download Deal
By Antone Gonsalves
InformationWeek
June 15, 2009 07:48 PM

Universal Music, the world’s largest record company, said Monday it would offer its catalog on Virgin Media’s upcoming unlimited download service in return for the U.K. broadband provider agreeing to suspend service to people who persistently download tunes illegally.

234

whitfit 06.16.09 at 5:02 am

Martin Ranger’s comment, as well as some others assume or use anecdotal evidence on one important issue: does a government grant of monopoly over creative works increase the production of those works? It seems to be a question that could be answered in a more reliable form than people discussing the relative merits of “The Wire” vs. “Star Trek” or something from an earlier era. In the little research that I have done (which admittedly concentrated on patents) there was no statistical evidence of a real change in the production of ideas as patent strength changed.

It seems to me that this is a fairly important point if one is to use the argument that IP law is important as an incentive to create, that there is some evidence that it indeed does have that effect. Looking at it in a simple model, there are reasons to believe that it might, but there are also a lot of reasons why such restrictions might also hinder creativity. One basic example of this is in the book “The Gridlock Economy”.

235

steven 06.16.09 at 7:24 am

I stand corrected on canonical usage of “ponies” vs “puppies” in internet argumentation. Thanks John!

Now put it on the internet, where 100,000 people want it, and you don’t have to cut in a publisher or a printer. All we’ve got to do is figure out how to average about $0.20 from each of them and you’re status quo. Get that up to a whole two bits each and you’re well into the land of pleasant surprises.

I see, so you are demanding that we abandon IP in favour of a plan that runs, if I understand it correctly:

1) Put thing on internet

2) ???

3) Profit!

236

novakant 06.16.09 at 11:28 am

Righteous Bubba has again answered more concisely than I’ll ever manage.

I don’t find this continuous sniping from the sidelines with one-liners particularly enlightening.

this has absolutely nothing to do with any “demands” I am making. It’s not about ego, just reality.

I am unwilling to surrender to law-breaking, even if it’s widespread, and simply accept it as “reality”. In reality all sorts of people commit all sorts of minor and major crimes on a daily basis, that doesn’t mean that our laws are wrong or we should cease to enforce them.

What makes you think it’s a lasting medium? Why shouldn’t film just be a blip, in the scheme of things lasting barely longer than the kinetoscope?

Because I love film and most of the people on this planet love film – its success as an art form has been overwhelming and universal. Pretty much the same goes for literature, even if slightly less people actually read it.

I don’t feel tempted to pull the emergency brake on our collective cultural evolution just so I can preserve film in whatever I self-absorbedly designate to be it’s one, true, “time-tested” form.

So the people ripping off creatives are now the driving force of our “collective cultural evolution” – not. It’s the creatives for the most part who keep it alive and sometimes push it forward a little. The pirates are actually remarkably conservative in their tastes, they’re not downloading avantgarde films or experimental music en masse, rather the vast majority of them just want the latest blockbuster or pop album for free. I don’t see much potential for innovation coming from this crowd.

And as for the “one, true, ‘time-tested’ form”, both in the field of literature and film pretty much everything that can be done has been done as far as the possibilities of the medium are concerned – and all these experiments were initiated by artists pushing the boundaries, not people circumventing copyright. While some of these experiments have been taken up by the mainstream and there certainly is some potential for innovation still, it remains true that the vast majority of the output in these fields relies on traditional rules of story telling, because that is what people want to see and read. I’m taking a wild guess here and claim that for the most part they will do so in the future.

Anyway, I don’t see how piracy is going to further innovation and since you have failed to come up with any substantial description of how this magical process will work, I cannot take your claim seriously, just as I fail to see how your model for reimbursing artists is supposed to work. You seem to be less interested in the arts and their continued existence, than in coming up with vague justifications for circumventing IP-laws.

237

bianca steele 06.16.09 at 1:18 pm

Now put it on the internet, where 100,000 people want it

Ah, but if I put my book on Typepad, I can find the IP addresses of everybody who downloaded. What about the people who want to read without the author/publisher knowing who they are?

238

jack lecou 06.16.09 at 1:21 pm

I see, so you are demanding that we abandon IP in favour of a plan that runs, if I understand it correctly:
1) Put thing on internet
2) ???
3) Profit!

The continuing arguments from incredulity aren’t convincing. They don’t make the actual arguments go away, and anyway, quite a number of concrete suggestions have been made, both here and elsewhere.

239

jack lecou 06.16.09 at 1:24 pm

I am unwilling to surrender to law-breaking, even if it’s widespread, and simply accept it as “reality”.

This is the “it’s teh illegal so I win” argument? No use addressing the actual debate here, which about changing a bad law?

I’ll get around to your other points later. Maybe. It would help if you actually addressed some of mine.

240

Ginger Yellow 06.16.09 at 1:27 pm

“I see, so you are demanding that we abandon IP in favour of a plan that runs, if I understand it correctly:

1) Put thing on internet

2) ???

3) Profit!”

Worked pretty well for Radiohead. I seem to recall the average price paid in their tip jar was just over $2. Now, obviously, not every content producer is Radiohead. But the point is this, as Steven (presumably unwittingly) acknowledged:

On the other hand, it’s clear that we haven’t arrived at a complete breakdown of IP yet, since Microsoft/Ubisoft/Eminem/JK Rowling are obviously still all making shitloads of money out of it despite rampant “piracy”

Even in a world where consumer piracy is rampant, easy and virtually unprosecuted, people still make lots of money from content using more or less their old busines model. It hardly seems too much of a stretch to think that there’s money to made using a model that takes advantage of new technology rather than avoiding or crippling it.

241

Salient 06.16.09 at 1:30 pm

I don’t find this continuous sniping from the sidelines with one-liners particularly enlightening.

I’d appreciate it if you’d go back and answer all the questions I asked in #97, which were meant to get a better idea of precisely (1) what rights you feel are inherent, (2) what rights are inherent but can be sold, (3) what rights are given up upon selling a copy of your work. Thanks.

242

Salient 06.16.09 at 1:40 pm

Anyway, I don’t see how piracy is going to further innovation

I don’t see how piracy is going to automatically stifle innovation either. Well, it depends on how you define piracy. My problem with the word is, “piracy” roughly means “breaking property law” — we’re not talking about what is or is not legal, we’re talking about what ought to be legal in our societies.

What do we want to include in IP-owner’s rights? What should a publisher be able to prohibit with force of law? Making a copy without paying the publisher? Making a derivative creation without paying the publisher? Making a derivative creation without mentioning the original work? Is it piracy for me to write and illustrate a Cinderella story? Is it piracy to make a copy of someone else’s Cinderella story from 1879 for myself? Is it piracy to copy out a quote I like from a 2009 Cinderella story and post it on the Internet, if I cite the source? Is it piracy to do so without citing the source?

It’s easy to presuppose the lines are clearly drawn where you’ve drawn them, but other than an authoritarian appeal to what the law happens to be right now, it’s not clear which actions we should agree are or aren’t wrong.

243

Righteous Bubba 06.16.09 at 1:55 pm

In reality all sorts of people commit all sorts of minor and major crimes on a daily basis, that doesn’t mean that our laws are wrong or we should cease to enforce them.

It also doesn’t mean they’re right. Non-argument. But sure, throw all those musicians in jail for smoking pot.

244

steven 06.16.09 at 2:03 pm

Now, obviously, not every content producer is Radiohead

No shit. And since I pointed this out myself on my blog post two years ago, I still haven’t seen any actual detailed “concrete suggestions” for the non-Radioheads of this world (ie people who didn’t already get famous through the evils of IP). All I see is a) vague resentful moralizing against the legal status quo and b) handwaving arguments that, absent the status quo, maybe grateful netizens will club together and buy every artist a pony.

245

bianca steele 06.16.09 at 2:28 pm

If I might point out one more obvious thing: If John Q. is correct–that scientific progress and cool technological innovations, historically speaking, have always come from morally sound, peace-loving academics who were awarded the right of intellectual freedom by a governmental-social institution that goes at least as far back as the middle ages–in that case we could achieve world peace simply by restoring the serious licensing requirements consistent with that fact, and refusing to license IP to anyone less morally sound. IF that’s true, who would not feel morally obliged to bring such a state of affairs about? But that’s a very big deck of cards and arranged awfully precariously, from where I stand.

246

Ginger Yellow 06.16.09 at 2:46 pm

No shit. And since I pointed this out myself on my blog post two years ago, I still haven’t seen any actual detailed “concrete suggestions” for the non-Radioheads of this world (ie people who didn’t already get famous through the evils of IP).

I’m not quite sure who you’re talking about by the non-Radioheads. If you mean the vast majority of musicians, as I said upthread, they already make most of their money with little to no help from IP law, by performing live in bars and clubs. They don’t have record deals to benefit from strict enforcement of IP law and they genuinely want to reach as many people as possible because some of those people will pay to see them live and will spred the word. Hence the availability of tons of free music on MySpace. Their reputation may also get them session work, which does to a certain extent depend on IP, but often in a way that non-commercial copying doesn’t really affect.

If you mean signed bands who just aren’t huge, iTunes, Amazon MP3 and Spotify are pretty obvious concrete suggestions and at least in the first two cases, very successful ones.

247

steven 06.16.09 at 2:57 pm

Sorry, I think we were talking at cross purposes. By “non-Radioheads” I mean non-already-famous creators of all types (one can’t eg advise writers to earn their money through live-writing gigs).

Meanwhile, selling your music on iTunes or Amazon (or your books on Kindle) does not entail abandonment of your claims to IP, so it’s not what I was arguing against — indeed, I think it’s great. (Though Amazon’s Kindle terms are pretty artist-gouging and their DRM is undesirably restrictive.) In fact, if you do choose to sell DRM-free music on iTunes, you are in effect abandoning part of your legal right to proscribe copying: and that seems to me to represent an example of reasonable modification of IP practice, rather than the wholesale abandonment of it for which some are shouting.

248

jack lecou 06.16.09 at 3:27 pm

Anyway, I don’t see how piracy is going to further innovation

The really big problem with this is that it isn’t “piracy” we’re talking about, and this misunderstanding undercuts most of your post. The innovation is obviously not coming from the “piracy” (sharing) per se, it’s coming from the underlying technology and social change that enabled that sharing in the first place.

And not only is the wider sharing good in itself– a very large net good even, assuming somebody, somewhere can still figure out how to continue to be creative without demanding that consumers be locked up for doing the same thing libraries have been doing for centuries–but the open internet and digital technology is also bringing along a whole spectrum of new creative forms, new twists on old forms, new communities, millions of “ordinary” people newly figuring out how to share their creativity widely with others. In short, a lot of new artists out there “pushing the boundaries”.

We’re swimming in new creativity, and the best you can come up with is bitterness about “pirates” getting things for free.

249

jack lecou 06.16.09 at 3:33 pm

both in the field of literature and film pretty much everything that can be done has been done as far as the possibilities of the medium are concerned

It seems to me like this sort of statement usually rebuts itself if you wait long enough, so I won’t even bother.

– and all these experiments were initiated by artists pushing the boundaries, not people circumventing copyright.

I’d be more careful with the word “all” if I were you. It’s only incidental to the debate, but nevertheless artists pushing the boundaries and people circumventing copyright are not exactly mutually exclusive groups.

250

jack lecou 06.16.09 at 3:35 pm

…rather than the wholesale abandonment of it for which some are shouting.

Who? Certainly not me.

251

lemuel pitkin 06.16.09 at 3:35 pm

You want an enforceable right to be cited in footnotes, whenever the ideas in a derived work are dependent on your own ideas, but no other property rights in a text?

Something like that. But not necessarily the no otehr rights part. Something like a copyright, but with a much shorter term (maybe ten years) and applying only to commercial uses, might be reasonable.

Do I have this right?

Absolutely. If someone copied your comments here and presented them verbatim as their own work, that would be wrong. And that right is strongly enforced, I’d say, not so much by laws as by norms. Plagiarism is one of the most serious academic offenses and one of the few things that can reliably wreck the career of a promising writer.

It could create the appearance of a consensus that isn’t really real. Or, for example, a lack of consensus about where a reasonable middle ground might be, between the position the film and music industries’ lawyers are pretty much obliged to take, and the Fourierist position.

Oh, definitely. I think John Q. — whose post we are all commenting on — is attempting to stake out exactly such a reasonable middle ground. So am I, altho I place it a bit further to the left.

The argument appears to be that the left side of the argument will win because technology makes it impossible to enforce the wishes of the supporters of the righthand side.

Well, what if that argument is correct? or if not impossible, at least very costly and difficult.

252

steven 06.16.09 at 3:45 pm

“piracy” (sharing)

Btw, “piracy” vs “sharing” is one of those clashes Unspeak terms for which AFAIK there is not yet an obvious unmoralizing alternative.

253

Ginger Yellow 06.16.09 at 3:48 pm

In fact, if you do choose to sell DRM-free music on iTunes, you are in effect abandoning part of your legal right to proscribe copying: and that seems to me to represent an example of reasonable modification of IP practice, rather than the wholesale abandonment of it for which some are shouting.

To echo Jack, I’m not either and I don’t think many people on this thread are, although I’m happy to admit many people do in the wider world. I’m broadly in favour of the sort of thing Jack’s been proposing – as I laid out nearly 200 posts ago. I’ve argued that there’s room and reason for strict enforcement of commercial use of IP while greatly relaxing non-commercial usage restrictions. Now I’ll also readily admit that greater freedom for non-commercial use will somewhat diminish the attraction to potential commercial users, but the evidence suggests there’ll still be plenty of it.

254

lemuel pitkin 06.16.09 at 4:02 pm

Another thing: The whole question of illegal sharing and piracy is really a red herring. Even if copyright laws could be enforced perfectly, advances in information technology would still make IP-based compensation for creative work much less viable.

First, as the non-IP costs of distributing a work fall, the markup over marginal cost required to generate the same income for IP owners rises. E.g. when physical CDs in bricks-and-mortars stores were the only way to distribute music, it might take a markup of 50% to produce an income of $4 per CD for the copyright holder. (Made-up numbers, obviously.) But when music is distributed online, it might take a markup of 500% to produce the same $4. This means competition *among legal sellers* will put much more pressure on IP revenues than formerly.

Second, even if you rule out the currently illegal perfect substitutes for a book, film, etc., we now have far more perfectly legal *close* substitutes, and economically that’s just the same. For instance, most of us reading this blog would, ten or fifteen years ago, probably have been giving the same time and attention to some print magazine or journal. We’re not infringing magazines’ copyrights here but we’re undermining their business model just the same. Similarly, every musician who finds a way to make money by giving their music away online (or who just gives it away regardless) makes it that much harder for similar musicians to make money selling recordings.

That is why IP owners want to extend their monopolies as widely as possible. (See former Sen. Santorum’s bill to prohibit the US Weather Service from making its forecasts publicly available, to protect the business model of for-profit forecasts.) The economic logic of IP requires you to have a monopoly on your work and any close substitutes for it — any time someone chooses competing product Y rather than your product X, they are depriving you of the same revenue, whether Y is legal or not.

255

lemuel pitkin 06.16.09 at 4:15 pm

a world in which intellectual property rights were not recognized, but a responsibility not to plagiarize was. Isn’t that like saying, “there are no property rights in land, but trespassing is forbidden”?

What’s so strange about that? Private property generally includes the right to use, to exclude, and to alienate, but there’s no logical reason those three rights have to go together. Your example is one where there is a right to exclude but not necessarily to sue or to alienate, that’s all.

Or think about a college degree — it’s like property in that it’s yours to use or not as you please, but unlike property in that you may not sell it to a third party. I’m suggesting that something similar applies (or should apply) to creative work — the creator has some rights over them, but not the exact package of rights we call private property.

256

Righteous Bubba 06.16.09 at 4:36 pm

In fact, if you do choose to sell DRM-free music on iTunes, you are in effect abandoning part of your legal right to proscribe copying

The DRM is always broken in any case, so as a practical matter one has to accept that one’s music is out there.

257

Righteous Bubba 06.16.09 at 4:39 pm

Is it worth noting that the government of Pakistan is including Monsanto’s IP-laden seeds in its budget?

http://www.thenews.com.pk/daily_detail.asp?id=182991

258

jack lecou 06.16.09 at 4:41 pm

Btw, “piracy” vs “sharing” is one of those clashes Unspeak terms for which AFAIK there is not yet an obvious unmoralizing alternative.

There’s some truth to that, but I’d be a lot more convinced that “sharing” wasn’t the correct term if anyone could either A) point out why “piracy” is the correct term for what libraries do, or B) point out how someone “pirating” a digital copy of a song or a book by sharing it with a bunch of people is (in effect) different from what libraries do (or at least try to do).

259

ffrancis 06.16.09 at 4:51 pm

One difference from libraries: I get a cheque every year whose amount, calculated using sampling and a complicated formula, is based on the books I have authored which are in Canadian libraries. Over the years, for some titles, this has come to more than the total royalties I received from the publisher(s).

260

lemuel pitkin 06.16.09 at 5:00 pm

I get a cheque every year whose amount, calculated using sampling and a complicated formula, is based on the books I have authored which are in Canadian libraries.

This is a very nice example of a non-IP based system for compensating creators. It’s not clear how generalizable it is, but conceivably royalties based on number of downloads, etc., paid for out of general taxation, could replace copyrights as the main source of creator income. There would be practical problems, no doubt, but this system does have the major advantage over IP of being incentive-compatible for consumers, who have no reason to evade it.

261

Ginger Yellow 06.16.09 at 5:09 pm

It wouldn’t have to be general taxation either – it could be a specific levy on ISPs, presumably passed on t0 consumers.

262

lemuel pitkin 06.16.09 at 5:15 pm

Right. It just couldn’t be a per-download tax or fee.

263

Righteous Bubba 06.16.09 at 5:52 pm

Let’s say I’m a composer and I work on a piece for a while and it’s forty minutes long.

Let’s say The Minutemen live next door and in the same amount of time they write forty songs.

Do we earn the same money off this ISP fee?

264

Righteous Bubba 06.16.09 at 5:58 pm

Also, speaking as someone who played in a band and ate noodles with butter and sugar because those were the three food items I had, I keep thinking that a rise in welfare rates would certainly help creators more substantially than haggles over IP.

265

lemuel pitkin 06.16.09 at 6:09 pm

265-

Dunno. Maybe the royalties thing just shifts the bad incentives from consumers to creators. We don’t want you splitting your piece into 40 segments, and we don’t want the Minutemen tacking an hour of silence onto the end of each of theirs. Or maybe there is a workable solution. Like the royalties aren’t based on downloads, but on what fraction of people in a representative sample are listening to your music at a given moment. Since we actually do pay for broadcast TV through a system like that, it can’t be totally impractical, right?

I’m not wedded to any particular alternative, just to the idea that there are alternatives.

266

lemuel pitkin 06.16.09 at 6:11 pm

I keep thinking that a rise in welfare rates would certainly help creators more substantially than haggles over IP.

Right. As somebody said way back at comment 18…

267

Righteous Bubba 06.16.09 at 6:13 pm

Right. As somebody said way back at comment 18…

Burned! Fortunately I owe you nothing.

268

John Quiggin 06.16.09 at 9:44 pm

If John Q. is correct—that scientific progress and cool technological innovations, historically speaking, have always come from morally sound, peace-loving academics

The extent to which this comment, and quite a few others on the strong-IP side of this discussion, relies on a caricature of the opposing position is pretty good evidence of the extent to which the strong IP position relies on reflex reactions and not on reason.

The problem with this kind of thing is that, as the post shows, these reflex reactions aren’t widely shared, so relying on them is a path to political defeat, now that the issue can no longer be confined to the policy elite.

269

bianca steele 06.16.09 at 11:56 pm

John,

I don’t think my argument was a caricature or a straw man. I was trying to briefly articulate a point of view that I think is taken for granted among some people who are interested in IP arguments. If I’d had more space and more time, I might have tried to make an argument for this point of view’s actually existing. I’m sorry if my point didn’t come across.

I certainly did not intend to sarcastically imply that academics are rarely “morally sound[ and] peace-loving.” (I see it could be read that way.) Rather, I am calling into question the idea that morality and pacifism are correctly considered the most important qualifications a scientist can have. Something like what I described is in fact commonly assumed in a fair amount of scholarly literature in related fields, as well as in the media (say, the New York Times). Taken individually, I think most if not all of the phrases in my comment represent the current “common sense” view. If it’s a caricature to combine them all, I don’t know what ordinary people are supposed to think at times when they find it necessary to take an opinion on a topic they only know about from the newspaper and from discussions in the corporate cafeteria.

I don’t consider myself to be taking the “strong IP” position in this particular argument, nor (as you probably know) are the people who seem to share the point of view I pointed out—a point of view that I think is logically compatible with a great deal of what had already been said in the comments to this post. People who might easily think what you are discussing is the argument most of interest to them.

270

Tim Wilkinson 06.17.09 at 12:32 am

Righteous Bubba @236
Universal Music, the world’s largest record company, said Monday it would offer its catalog on Virgin Media’s upcoming unlimited download service in return for the U.K. broadband provider agreeing to suspend service to people who persistently download tunes illegally.
Except it appears they won’t actually check whether you are downloading tunes illegally – presumably anything that looks to them like P2P filesharing will be assumed illegitimate.

Some light (if slightly distastful) relief – don’t know if they have the same kind of ads in the US, but: The IT Crowd clip

271

novakant 06.17.09 at 11:03 am

evidence of the extent to which the strong IP position relies on reflex reactions and not on reason.

Unsurprisingly I find this statement to be unfounded and unreasonable: almost all the countries in the world subscribe to what you are calling the “strong IP position”, i.e. the Berne Convention and its successors. And in case you want to argue that all this is the work of some policy elite solely interested in furthering corporate power, I have already mentioned that the roots of this position are to be found in the French ALAI founded by Victor Hugo and other writers. Claiming that all these people are simply unreasonable is a bit rich.

272

Salient 06.17.09 at 1:57 pm

Claiming that all these people are simply unreasonable is a bit rich.

I dunno. A lot of people sure seemed to support invading Iraq. I think they were unreasonable, etc.

C’mon, though, can I persuade you to address #97? I’m more interested in exploring your perspective than I am with arguing with you, and you said some things about an artist’s right to hide/destroy their own work that were interesting. Example: what you said in #78 earlier upthread implied, to me, that you might support (for example) a definition of “sell” that allows an artist to later demand the artwork back so it can be destroyed. In this case “sell” = “right to view/read/listen to for an indeterminate period of time” (or maybe the artist would be required to refund money if s/he wanted the artwork back to destroy it). That’s interesting and I want to know if I’m understanding correctly.

I don’t understand IP very well from a theoretical perspective. Open question, who is currently doing analytical work & writing on ethics re: intellectual property? Is anyone empirically researching what IP policies result in the maximum level of innovation, however that gets measured?

I think IP seems roughly equivalent to “laws that prohibit others from profiting off the new stuff you’ve created unless they have your permission.” I thought the main point of such law was to prevent, for example, Person Y from selling copies of Person X’s book for half the price Person X was charging. That’s very naive. Perhaps IP = “laws that help make sure you can make money off the new stuff you come up with, if you want to try.”

So it’s not protecting “property” in the way I normally think of protecting property (right to prohibit use); it’s protecting “right to control distribution” (I guess there really is strong parallel with owning a business; other people can’t open new locations and claim to be part of your chain w/o permission).

273

jack lecou 06.17.09 at 6:24 pm

Unsurprisingly I find this statement to be unfounded and unreasonable: almost all the countries in the world subscribe to what you are calling the “strong IP position”, i.e. the Berne Convention and its successors. And in case you want to argue that all this is the work of some policy elite solely interested in furthering corporate power, I have already mentioned that the roots of this position are to be found in the French ALAI founded by Victor Hugo and other writers. Claiming that all these people are simply unreasonable is a bit rich.

I’d say first of all that I didn’t read JQ as addressing Victor Hugo, but rather actual commenters here, some of whom do appear to have a reflexive defensive reaction to any suggested change in the status quo.

But I also second Salient: I don’t find it all all ‘rich’ to consider the possibility that the 19th century policy makers responsible for the Berne Convention might have been operating in something of an elite echo chamber. In particular, I think it’s easy to see how the idea of a strong “creator’s rights” movement has a rather powerful sort of truthiness to it that would be rather difficult to counter without a fairly well-developed appreciation for the role of the public domain.

274

lemuel pitkin 06.17.09 at 7:04 pm

Perhaps we should move the discussion over to the other thread?

275

steven 06.17.09 at 7:22 pm

I guess when one side on an argument feels the need to start accusing the other of arguing from “reflex” rather than “reason” (personally I cannot write anything through mere reflex, would that I could; but each to his own), the discussion may be considered closed or at least ripe for abandoning.

276

Henri Vieuxtemps 06.17.09 at 7:31 pm

According to his wikipedia article Victor Hugo died in 1885. He was 83.
According to the wikipedia article linked above the Berne Convention took place in 1886.
Hugo was indeed involved with ALAI, but we can only speculate whether he would enforce the Convention; he was dead when it was signed.

277

lemuel pitkin 06.17.09 at 7:32 pm

Well, I haven’t accused you of anything, Steven. And I’d very much like to hear your replies to my recent comments.

278

steven 06.17.09 at 8:22 pm

Sorry, lemuel, I wasn’t aware you were addressing me in particular lately, but since you ask I do find eg #263 quite curious. Why would you want to replace wholesale a system of voluntary selective patronage (IP) with a system of government-enforced obligatory universal patronage (tax to pay artists)?

279

Dr Zen 06.18.09 at 3:41 am

Taliesin only got paid for his live work.

Comments on this entry are closed.